Drafting the Evidence Affidavit and the Law of Cross-Examination in Commercial Arbitration

R & D Law Chambers LLP Practice is led by Ravish Bhatt  |  Advocate, Bar Council of Gujarat (G/504/2008)  |  Dual-qualified lawyer (India and England and Wales)  |  Solicitor of England and Wales (non-practising), SRA Registration No. 492 477  |  ADIT, Chartered Institute of Taxation, London Published: 28 October 2026  |  Last reviewed: 28 October 2026

 

Scope. This article addresses the drafting of the evidence affidavit (witness statement) and the law governing cross-examination in commercial arbitration, principally India-seated arbitration under the Arbitration and Conciliation Act, 1996, with the position for foreign-seated arbitration noted where it differs. It states the general law and is not advice on any particular reference. The firm advises on Indian law.

 

The evidence affidavit decides most commercial arbitrations before anyone is cross-examined, because the tribunal weighs what the documents support and discounts the rest. It is not a retelling of the pleading. It is built from the documents, says only what the record will bear, and leaves the other side’s undocumented assertions exposed. Every unanchored line is a line the cross-examiner owns.

 

Index of Topics

1. What the evidence affidavit is for, and why repeating the pleading wastes it
2. Build it from the documents
3. Target the gaps in the other side’s case
4. What not to say in the affidavit
5. Personal knowledge and hearsay
6. The law that gives cross-examination its value: curial law, not governing law
7. What changes when the seat is outside India
8. How the ICC, LCIA and IBA Rules frame witness evidence and cross-examination
9. What the evidence affidavit is for, and why repeating the pleading wastes it

The affidavit is the witness’s evidence-in-chief: the sworn, document-anchored account the tribunal reads before the hearing. Repeating the statement of claim wastes it, because pleadings assert and evidence proves. The affidavit’s job is to tie each disputed fact to a document and to isolate the facts the other side cannot.

 

In a commercial arbitration there is usually no oral examination-in-chief. The affidavit or witness statement stands as the witness’s direct evidence, and the hearing is reserved for cross-examination. The affidavit therefore carries the full weight of what the witness has to say, and a paragraph that merely restates the statement of claim adds nothing the pleading did not and invites the tribunal to read the witness as an advocate rather than as a source.

The useful affidavit does two things a pleading cannot. It exhibits the contemporaneous documents that prove the claim, and it identifies, precisely, the points on which the other side has taken a position its own documents do not support. Because the tribunal determines the weight of evidence for itself under section 19(4) of the Arbitration and Conciliation Act, 1996, an affidavit built this way is read as reliable and a bare narrative is read as thin.

2. Build it from the documents

Anchor every assertion you can to an exhibit, marked in the same paragraph. A fact tied to a contemporaneous document is one the tribunal can accept without having to believe the witness. A fact left floating depends entirely on credibility, which is the one thing cross-examination exists to test.

 

The discipline is mechanical and it works. State the fact, then mark the document that proves it, in the same breath: the board resolution for authority to act, the dated letter for a communication, the invoice for a price, the executed agreement for a term. The tribunal is not bound by the rules of evidence under section 19(1), and it fixes weight for itself under section 19(4), so a document-anchored affidavit reads as reliable while an unsupported assertion reads as weak.

The same discipline protects the witness under cross. A witness taken back to a document he himself exhibited is on firm ground; a witness defending a sentence with nothing behind it is not. Build the affidavit so that on every contested point the witness can answer from a document already on the record, not from memory.

3. Target the gaps in the other side’s case

The affidavit’s edge is not your own story; it is the gap in theirs. Set out the points the other side asserts but cannot document, and the documented facts it has to explain away. Build the affidavit so those gaps are visible to the tribunal without argument.

 

This is where a good affidavit stops mirroring the pleading and starts doing work. Two kinds of gap matter. First, the documented fact the other side must confront: a price, a date, a communication captured in writing that is inconsistent with its case. Mark it and let it sit; the document speaks for itself.

Second, the assertion the other side cannot support from any contemporaneous record: an arrangement said to exist, an approval said to have been given, a step said to have been taken, with nothing in writing behind it. State, carefully and within the witness’s own knowledge, that no such record was received or exists. The tribunal reads the contrast between a documented case and an undocumented one and draws its own conclusion, which is far stronger than the same point made as submission.

4. What not to say in the affidavit

Leave out the expertise that invites ‘you knew or ought to have known’, the oral assurance you cannot prove, any figure you would have to check later, argument that belongs in submissions, and above all any line your own contemporaneous document contradicts. Each is an opening handed to the cross-examiner.

 

An affidavit is damaged less by what it leaves out than by what it over-reaches to claim. Five lines recur.

The credential boomerang. Reciting the witness’s seniority and years in the industry feels like strength, but it arms the cross-examiner to say the witness knew, or ought to have known, the very thing the case says he did not. State the role and the authority that are necessary, and resist the curriculum vitae.

The unprovable oral fact stated as if proven. Meetings, telephone calls and assurances that left no record can be deposed to, but briefly and as what they are, because the first question in cross will be to show the writing.

The figure that needs checking. A number the witness cannot stand up on the day, the answer that becomes ‘I will have to check and revert’, is worse than no number. Put only figures the documents already carry.

Argument dressed as evidence. The affidavit states facts and exhibits documents; why they win the case is for submissions. An argumentative affidavit reads as partisan and costs the witness his neutrality.

The self-inflicted contradiction. The single most damaging line in any affidavit is one the party’s own contemporaneous document contradicts. Before it is sworn, check every assertion against the documents the other side already holds, because they will.

5. Personal knowledge and hearsay

A witness may depose only to what he knows. Where the affidavit records what others told him, say so, and keep it narrow. A blanket ‘all of this is within my knowledge’ is weaker than paragraph-level precision, because cross will find the paragraph that is not and use the blanket line to impeach the rest.

 

The affidavit should distinguish, line by line, between what the witness did or saw and what he was told or inferred. This matters for two reasons. First, weight: the tribunal fixes weight for itself under section 19(4) and will commonly give secondhand evidence less of it, so a deponent exposed as the mouthpiece for an absent colleague risks losing that paragraph.

Second, cross-examination targets exactly this seam. The examiner establishes the witness’s role, shows that the matter in fact sat with someone else, then ties the paragraph to that channel so that the evidence is revealed as what the witness was told rather than what he knows. An affidavit that is honest about the limits of knowledge from the outset denies the cross-examiner that move; one that overclaims hands it over.

6. The law that gives cross-examination its value: curial law, not governing law

Cross-examination, and the weight of a witness, are matters of procedure governed by the curial law, the procedural law of the seat, not by the law governing the contract. Change the contract’s governing law and you change what must be proved; you do not change how evidence is taken or tested.

 

Indian law separates three laws in an arbitration: the proper law of the contract, the proper law of the arbitration agreement, and the curial law governing the conduct of the reference. The Supreme Court set out this classification in Sumitomo Heavy Industries Ltd v ONGC Ltd, (1998) 1 SCC 305, holding that the curial law governs the manner in which the reference is to be conducted, the procedural powers and duties of the arbitrator, and questions of evidence. The case arose under the Arbitration Act, 1940, but the three-law classification is settled and has been applied consistently under the present Act. Evidence, and so cross-examination and its weight, fall on the curial side of the line.

The curial law is the procedural law of the seat, the lex arbitri. The two are conceptually distinct but coincide for an India-seated arbitration in the 1996 Act, and the mandatory parts of that Act cannot be displaced by choosing a different procedural law. The practical consequence for counsel: a contract governed by English or New York law but arbitrated in India is tried on evidence under the 1996 Act. The foreign governing law decides what counts as a breach, which shapes what you cross-examine about; it does not change how the cross is conducted or how the evidence is weighed.

7. What changes when the seat is outside India

The seat fixes the curial law. A foreign seat means the foreign procedural law governs the taking of evidence, and Part I of the 1996 Act, including section 19, does not apply, save the limited provisions preserved by the proviso to section 2(2). An India-seated arbitration keeps the 1996 Act whatever the contract’s governing law.

 

In Bharat Aluminium Co v Kaiser Aluminium Technical Services Inc, (2012) 9 SCC 552, the Constitution Bench held that the choice of a seat carries the law of that place for the conduct and supervision of the arbitration, and that Part I of the 1996 Act does not apply to arbitrations seated outside India. The evidentiary regime therefore follows the seat. An India seat brings sections 18, 19 and 34; a foreign seat brings that country’s lex arbitri and whatever institutional or IBA rules the parties adopt, with the Indian courts’ Part I role excluded except for the provisions the proviso to section 2(2) preserves, unless the parties have excluded those too.

For an Indian advocate conducting a cross-examination in a foreign-seated reference, the technique does not change, but the governing procedural framework and the court standing behind the tribunal are the seat’s, not India’s. The table sets the two scenarios side by side.

Issue	India-seated arbitration	Foreign-seated arbitration
Curial law (evidence, cross-examination)	The 1996 Act, principally section 19	The procedural law of the foreign seat
Part I of the 1996 Act	Applies	Does not apply, save the proviso to section 2(2)
Court standing behind the tribunal	Indian courts under Part I (sections 9, 27, 34, 37)	The seat’s courts; Indian courts only under the preserved proviso provisions
Role of the contract’s governing law	Decides the merits, not how evidence is taken	Decides the merits, not how evidence is taken

 

8. How the ICC, LCIA and IBA Rules frame witness evidence and cross-examination

Institutional rules give the tribunal broad control and say little on technique. The IBA Rules supply the working detail where parties adopt them: witness statements stand as evidence-in-chief, a witness must appear for cross-examination if any party asks, and a requested witness who stays away has his statement disregarded.

 

Under the ICC Rules of Arbitration (2021), Article 25, the tribunal establishes the facts by all appropriate means and may decide on the documents alone unless a party asks for a hearing. The LCIA Rules (2020), Article 20, leave the manner of witness evidence to the tribunal. Neither prescribes how to cross-examine.

The detail, in most international references and increasingly by adoption in Indian ones, comes from the IBA Rules on the Taking of Evidence in International Arbitration (2020). A witness statement serves as that witness’s direct evidence under Article 4; any witness whose evidence a party relies on must appear at the evidentiary hearing if his appearance is requested, and a requested witness who fails to appear without a valid reason has his statement disregarded (Articles 4.9 and 8.1); and Article 8.5 lets the tribunal allow cross-examination even where the other side did not ask for the witness.

One consequence shapes strategy. Unlike the strict rule in court, not every point need be put to the witness, and a failure to put a point is not, by itself, treated as acceptance of his evidence, a position parties often confirm expressly at the hearing.

How R & D Law Chambers Works on These Matters

R & D Law Chambers LLP advises parties in India-seated and cross-border commercial arbitration at the evidentiary stage, from drafting evidence affidavits and witness statements to preparing and conducting cross-examination and the applications that follow from it. The practice acts in references conducted under Indian law and under the ICC, LCIA, SIAC and other institutional rules, and in the related proceedings before the courts.

The firm’s arbitration practice is described here: International and Domestic Arbitration.

Related services and reading

International arbitration lawyers in India for cross-border disputes

Commercial disputes and litigation lawyers in Ahmedabad, for the court proceedings that follow an evidentiary ruling

Comparing the ICC, SIAC and LCIA rules

Document production and adverse inference in arbitration in India

From award to execution: the four-step enforcement protocol

This article is general information on the drafting of evidence affidavits and the law of cross-examination in commercial arbitration in India. It is not legal advice, does not create a lawyer-client relationship, and should not be acted on without advice on the facts of a specific matter.