Summary: The admissibility of electronic evidence in arbitration proceedings raises an important distinction between the Bharatiya Sakshya Adhiniyam, 2023 (BSA), and the Arbitration and Conciliation Act, 1996. While Section 63 of the BSA prescribes certification requirements for electronic records in judicial proceedings, Section 1(2) expressly excludes proceedings before arbitrators. Further, Section 19 of the Arbitration and Conciliation Act, 1996, provides that arbitral tribunals are not bound by the strict rules of evidence and may determine the admissibility, relevance, materiality and evidentiary weight of documents. Consequently, an electronic record should not be rejected solely because its statutory certificate is absent or technically defective. The Delhi High Court has also recognised that the certification requirements under Section 65B of the erstwhile Indian Evidence Act do not apply strictly to arbitration proceedings. Nevertheless, procedural flexibility does not eliminate the requirement to establish authenticity and reliability. Arbitrators must ensure fairness under Sections 18 and 24, and may examine the source, metadata, correspondence and supporting material before relying on electronic records. An arbitral award that disregards vital evidence may also face a challenge under Section 34 on grounds of patent illegality, subject to the limited scope of judicial interference. Therefore, parties should preferably obtain Section 63-style certificates, preserve original electronic records, raise objections promptly and establish authenticity through appropriate supporting evidence. The practical distinction is that certification may not be a mandatory condition for admissibility in arbitration, but reliability remains essential for determining evidentiary weight.
Electronic Evidence in Arbitration: Does a Section 63 BSA Certificate Still Decide Whether Your Emails Count?
A company cancels a transport contract following a series of complaint e-mails about the poor quality of service. The vendor contests the termination and the matter proceeds to arbitration. The company files the emails and a certificate signed by its principal officer. The tribunal later rejects the entire set of emails because the certificate was technically defective. The company loses on the point it thought it had won.
Was the tribunal entitled to do that? The answer depends on a question many practitioners skip: does the electronic evidence regime that governs courts also govern arbitrators?
The Main Legal Issue
In a court, electronic records are proved through the Bharatiya Sakshya Adhiniyam, 2023 (BSA). Section 63 prescribes a certificate for a computer output to be admissible. Courts have long treated that requirement seriously.
Arbitration is a different forum. The real question is whether a tribunal can refuse electronic evidence only because the Section 63 certificate is missing or flawed. A second question is closely linked to this. This is the extent to which a party can have regard to that flexibility without undermining its own case.
Applicable Legal Framework
Three provisions frame the answer.
1. Section 1(2), BSA. The Adhiniyam is applicable to judicial proceedings in or before any Court. It does not apply to affidavits presented to any court or officer, or to proceedings before an arbitrator.
2. Section 19, Arbitration and Conciliation Act, 1996. Section 19(1) says the tribunal is not bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872. Parties may agree on the procedure under Section 19(2). Failing that, the tribunal may conduct proceedings as it considers appropriate under Section 19(3). Section 19(4) says this power includes determining the admissibility, relevance, materiality and weight of any evidence.
Section 19(1) still names the 1872 Act, which the BSA replaced. My reading is that the position is the same for the BSA, particularly because Section 1(2) of the BSA excludes arbitrations independently. This is analysis and not a statutory statement.
3. Institutional rules. Many arbitration laws echo the same concept. In the 2022 Delhi High Court case discussed below, the Delhi International Arbitration Centre Rules, 2018 (Rule 25.2) provided that the tribunal is not bound by the Evidence Act, the Code of Civil Procedure or any strict rules of evidence when deciding admissibility, relevance, materiality and weight. Always check the rules your arbitration clause adopts.
Judicial Position
In a 2022 decision, a single judge of the Delhi High Court (Justice Vibhu Bakhru) dealt with exactly the situation described above. The tribunal had rejected documents, including emails and complaints, because the certificate under Section 65B of the Indian Evidence Act was held to be defective. The certificate had been marked and exhibited without any objection when it was produced.
In the light of Section 19 of the Arbitration Act, it has been held that Section 65B would not be applicable for arbitrations. However, while it has been noted that the rules of Evidence Act are generally followed in the process of arbitration, yet the Act would not be applicable in its strict sense.
BSA Section 63 is the replacement for Section 65B. The rationale is thus the same in the context of the BSA even though, in my view, a tribunal or the courts might regard it as persuasive rationale in relation to the previous Act rather than a decision in respect of the current Act.
What Flexibility Does Not Mean
Section 19 is not a licence to ignore reliability.
A tribunal must still treat parties equally and give each a full opportunity to present its case (Section 18). It must still hear parties and examine documents in a fair manner (Section 24). And it must still decide how much weight a record deserves.
An email with no certificate is not automatically trustworthy, and it is not automatically worthless. The tribunal asks practical questions. Who sent it? Is it consistent with other correspondence? Was its receipt admitted? Is the original available for inspection? The Section 63 certificate is a useful way to answer these questions, but it is not the only way.
The Section 34 Dimension
Two points matter when an award is challenged under Section 34.
First, Section 34 has limited application. The court does not re-examine the facts as an appellate court will do. A tribunal which justifies its stand that certain electronic records lack reliability is difficult to overturn.
Second, the Supreme Court has recognised that a finding based on no evidence, or an award that ignores vital evidence, can amount to patent illegality (see Ssangyong Engineering and Construction Co. Ltd. v. NHAI, (2019) 15 SCC 131). Rejecting key electronic evidence only on a technical certificate objection, when other material supports its authenticity, is the kind of reasoning that invites this argument.
There is a downside to going by the lenient nature of tribunals. The tribunal might consider your unverified screenshots, but at the same time, the tribunal can disregard them.
Practical Examples
Example 1: Supply dispute. Buyer takes the supplier’s email in which delay in delivery is communicated. Supplier does not deny sending the email. A tribunal can reasonably act on that email without a certificate, because authenticity is not in dispute. Whether such emails also create binding obligations is a separate question.
Example 2: Contested messages. A party files WhatsApp screenshots showing an alleged oral variation. The other side denies them. Here a certificate will not settle authenticity. The device, the chat export and the metadata matter far more, and a tribunal may well discount the screenshots if the source is not produced.
Where a party alleges that messages have been manipulated or fabricated, the inquiry goes further.
Common Mistakes
- Assuming that because the Evidence Act does not apply, nothing needs to be proved.
- Skipping the certificate altogether and then objecting when the other side files none.
- Failing to object to a defective certificate at the time it is exhibited, then raising the point later.
- Filing screenshots without the underlying device, mailbox or export.
- Not checking the institutional rules or the arbitration agreement for evidence-related terms.
- Assuming a court enforcing or reviewing the award will apply the BSA to what the tribunal did.
Practical Steps
1. Check the arbitration clause and institutional rules for evidence provisions before the first procedural hearing.
2. Seek a procedural order on how electronic evidence will be filed, authenticated and challenged.
3. Prepare a Section 63 style certificate anyway. It costs little and removes an argument.
4. Preserve native files, headers, chat exports and device access, so the tribunal can test authenticity.
5. Raise authenticity objections early and in writing.
6. Where the record is central to your claim, offer inspection or expert examination.
7. In your final arguments, address weight as well as admissibility.
Conclusion
The Section 63 certificate does not resolve the question of admissibility in arbitration proceedings, but it is nonetheless helpful in making out a case for why the record should be believed. The better course would be to view the certificate as an exercise in best practice rather than as an essential legal prerequisite.
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Disclaimer: This article is meant for informational purposes only and is not intended to be legal advice. Laws and judicial interpretations can change. Readers should seek legal counsel from an experienced advocate.
