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.