Fixing The Record: Section 26 And Expert Evidence In Construction Arbitration

In a highway, metro, transmission line or refinery dispute, what defeats a tribunal is rarely a question of law. It is the state of the record. Fifteen thousand pages of measurement books, hindrance registers, progress reports, material reconciliation statements and joint survey sheets and two delay analyses that cannot both be right, each prepared by an expert retained by the party it vindicates. Engineering, procurement and construction (EPC) contracts produce the sharpest version of the problem, because the contractor's scope runs across design, supply and execution, and so does the evidence. But the difficulty belongs to construction arbitration generally, and the statute already supplies an answer. Section 26 of the Arbitration and Conciliation Act, 1996. It is also among the least used provisions in the Act.

Section 26, read with Section 17(1)(ii)(b), is a power to reach a site and inspect it, not merely a way of obtaining an opinion. The questions that actually decide construction references, such as material reconciliation, the state of the site when the contractor left, quantum of work done by the contractor, finished, semi-finished and unfinished categorization, and when sites were handed over or required to be handed over by the Contractor to the Employer/Principal in cases of termination of contract, etc. are what a tribunal appointed expert shall be instrumental in bringing the just analysis of the situation at hand. And tribunals rarely use the Section 26 owing to dearth of reliable and neutral experts on board or list of experts.

What the provision says

Section 26 follows Article 26 of the United Nations Commission on International Trade Law (UNCITRAL) Model Law. Each of its three limbs opens with "unless otherwise agreed by the parties", so the whole provision can be contracted out of. Sub-section (1) lets the tribunal appoint experts to report on specific issues that the tribunal identifies, and require a party to give the expert relevant information or allow access to relevant documents, goods or other property for inspection. Sub-section (2) requires the expert, if a party asks or the tribunal thinks it necessary, to attend a hearing where the parties may question him and lead their own experts. Sub-section (3) entitles a party, on request, to examine everything supplied to the expert for his report.

In furtherance to the above, two important factors are often overlooked. Firstly, the tribunal has to frame the specific issues, because Section 26 does not authorize the expert to examine the claims, and non-preparation of scope of work is a common source of further dispute. Secondly, Sub-section (1)(b) is an evidence-gathering power in its own right. Read with Section 17(1)(ii)(b), which allows the tribunal to order inspection of property, authorise entry on land in a party's possession and permit samples, observations and experiments, it gives the arbitral tribunals far more site-level authority than they really use.

Section 26 also leaves a procedural gap that practice has to fill on its own. It does not say how the expert is chosen, or what happens if a party doubts the expert’s independence before the report is even written.¹ The safer practice, used in international arbitration but rarely in Indian domestic references, is to fix a short protocol before the appointment order is passed: circulate the proposed expert’s CV, give both sides a fixed window to object on conflict or qualification grounds, and agree the draft terms of reference before the appointment is confirmed. That one step removes most of the objections that otherwise surface for the first time after the report is filed, when it is far harder to fix.

Where the need of expert arises

These situations recur across item-rate, turnkey and EPC forms alike.

Material reconciliation- Where materials are issued free or supplied departmentally, the dispute is arithmetically simple and evidentially impossible. How much construction was done in actuals, condition of the equipment installed at site or how much cement, steel, bitumen or cable was issued, how much was consumed against theoretical coefficients, and who bears the excess. The record is usually incomplete, kept by one side and disputed line by line. If the primary records are given to one independent quantity surveyor rather than two party-appointed experts, the exercise takes only few weeks  to conclude and most likely end up saving the expert’s findings and figures becoming another head of dispute.

The state of the site. When a contract ends mid-stream, the value of work in place at that date becomes central, and photographs and measurements taken months apart at different chainages prove very little. A site visit directed by the tribunal, on notice and with both sides present, produces a record neither party can later disown.

Handover and right of way. These claims turn on a simple question that is hard to answer: when did the contractor first get land it could build on? Handover is seldom a single event. Fronts are released piecemeal, often still encumbered by structures, utilities or awaited clearances, and an expert who maps each stretch against the programme can establish what was genuinely available and on what date.

Defects and delay. Whether the fault in design, bad workmanship or misuse in service as claimed is true or not is an engineering question. So is the issue of delay. As-planned versus as-built, time impact analysis and collapsed as-built are all recognised methods, and run against identical facts they routinely yield findings hundreds of days apart.

The challenges

India has few practising delay and quantum experts with real forensic experience of the contract forms in use here, whether based on the conditions of the International Federation of Consulting Engineers (FIDIC), the standard documents of the National Highways Authority of India (NHAI), or Central Public Works Department and Railway conditions. The same names recur, an expert with no prior engagement for either side is often unavailable, and the conflict check alone can take months. Nor is there any register of arbitration experts in India, or a code of expert conduct with real force behind it. Moreover, a tribunal expert costs money on top of two party experts, and where the claimant is a stressed contractor and the respondent a public sector employer with internal approval constraints, neither wants to bear the additional cost. Section 31A lets the tribunal allocate witness costs at the end, but the difficulty is funding the expert during the reference alongwith approval delays to release the fees. Parties also worry, legitimately, that a tribunal will adopt the expert's conclusions and stop deciding for itself, and an appointment adds months to a reference already running against the twelve-month period in Section 29A. Many Indian construction tribunals also include retired chief engineers, whose technical knowledge is an asset but tempts them to decide technical questions on undisclosed personal expertise rather than on evidence. That is where challenges are born.

A tribunal which adopts a conclusion without reasoning to it independently has not done its job. One habit reduces the risk further: have the tribunal circulate the expert’s report in draft, with a short window for the parties to raise factual errors, before it is treated as final. Institutional rules already expect something close to this, and there is no reason a domestic tribunal cannot do the same by order.

How other jurisdictions manage it

India's text is not the outlier. Section 26 reproduces Article 26 of the Model Law, which Singapore and Hong Kong have adopted in substantially the same terms, Section 54 of the Hong Kong Arbitration Ordinance incorporating it directly. The problem lies in what is built around the text.

England goes one step further. Under Section 37 of the English Arbitration Act 1996, a tribunal may appoint an expert or legal adviser to report to it and to the parties, or an assessor to sit with it on technical matters and attend the hearings. The parties must be given a chance to comment on whatever such a person says. Two things follow. The assessor puts on the record what Indian construction tribunals often do off it, through a technically qualified co-arbitrator. And the fees of a Section 37 appointee are treated as the arbitrators' own expenses, recoverable in the award, so the funding problem that defeats most Indian proposals does not arise. Civil law seats go further still. Article 184(1) of the Swiss Private International Law Act and Article 1467 of the French Code of Civil Procedure make the tribunal responsible for taking evidence, and there a tribunal expert is the norm rather than the exception.

Institutional rules also provides for the procedures that our Indian Arbitration Act omits. Article 25(4) of the International Chamber of Commerce (ICC) Rules requires the tribunal to define the expert's terms of reference, and Rule 41 of the Singapore International Arbitration Centre Rules 2025 circulates the report and invites written comments as of right. Sourcing is handled institutionally too: the ICC's International Centre for Alternative Dispute Resolution runs standing Rules for the Appointment of Experts and Neutrals covering construction and engineering. A tribunal that needs a neutral quantity surveyor can simply ask the Centre to propose one. In India there is nowhere to make that request. The search comes down to who the tribunal happens to know.

Practice abroad also pre-empts much of this by contract. The standing Dispute Avoidance/Adjudication Board under the FIDIC conditions, staffed by engineers who visit site during the works, records site condition, front availability and handover as they happen rather than reconstructing them years later. Employers who delete those provisions are choosing the Section 26 problem.

What should change

One must address experts in the first procedural order: whether an appointment is contemplated, on what issues, how objections are to be raised, and the sequence for report, comments and examination. Also, fixation of the expert's fees and requirement of equal deposit at that stage, with liberty to recover under Section 31A shall be covered.

A tight written terms of reference must be framed by the Tribunal. Sections 26(1)(b) and 17 must be applied together for site work, through one composite order fixing the inspection date, directing joint attendance, permitting sampling and measurement, and requiring a factual site note before any opinion is expressed. Sub-sections (2) and (3) must be treated as mandatory in practice, because tendering the expert for questioning and disclosing his/her working papers costs a hearing day and protects the award.

Where the parties will not fund a tribunal expert, there is a cheaper substitute. Direct the two party experts to meet without their lawyers and produce a joint statement setting out what they agree on and exactly where they differ, then hear them together rather than one after the other, so that each has to answer the other's reasoning in front of the tribunal. This is concurrent evidence, or hot-tubbing, and Chapter XI of the Delhi High Court (Original Side) Rules, 2018 already recognises it. In many references the joint statement alone disposes of most of the technical disagreement, and what survives is genuinely in issue.

Separately, Indian institutions should publish panels of experts by discipline, with compulsory conflict disclosure and a binding code of conduct, on the model of the ICC Centre. That needs no amendment to the Act. It is institutional work, and it can be done without any legislative interference.

Construction arbitration in India produces awards of enormous value on records that are often unfit for the purpose, and Section 26 lets a tribunal repair the record instead of choosing between two versions of it. The provision is not the problem. The problem is a market with too few credible experts, no machinery to find or fund them, and a habit of reaching for the section far too late.

Footnote

^{1 IBA Rules on the taking of evidence in International Arbitration (2020), Article 6, which required a tribunal-appointed expert to file a statement of independence before accepting appointment, gives the parties a fixed window to object, and required the tribunal to consult the parties on the expert’s terms of reference}

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