Arbitration

Arbitration Under the provisions of the now repealed Arbitration Act 1940, arbitrators appointed by the parties or by the court on the failure of the parties to appoint arbitrators in terms of their agreement, decided disputes between such parties informally by giving an award. Court passed a decree in terms of the award unless it found that the arbitrators misconducted themselves in giving the award. Under the Arbitration Act 2001, scope of arbitration of disputes between the parties has been extended to international commercial arbitration also which was not available under the now repealed Arbitration Act of 1940. The new law provides for international commercial arbitration between a citizen or an organisation of Bangladesh on the one hand and a foreigner, foreign resident, foreign company, foreign controlled company or firm and a government of a foreign state on the other, and also arbitration between the citizens or organizations of Bangladesh and for execution of an award of arbitration as a decree of the court and also for execution of a foreign arbitration award subject to certain conditions by a court under the provisions of the civil procedure code for execution of a decree. It not only provides for arbitration of disputes arising from arbitration agreement by an arbitration tribunal to be constituted with a sole arbitrator or multiple arbitrators to be appointed by the parties in terms of such agreement, but also in the absence of any such number of arbitrators in the arbitration agreement by three arbitrators.

In the case of an arbitration tribunal constituted with three arbitrators, if the parties do not agree otherwise, each of the parties shall appoint one arbitrator and such appointed arbitrators shall appoint the third arbitrator who shall be the chairman of the arbitration tribunal. If the parties do not agree otherwise parties would appoint equal number of arbitrators, and such arbitrators collectively shall appoint an additional arbitrator who shall perform the responsibility of the chairman of the arbitration tribunal. In the absence of any agreed mode of appointment on the failure of one of the parties to agree to the appointment of a sole arbitrator or one of the arbitrators to be appointed by each of the parties within thirty days from the receipt of a request from the other party or when appointed arbitrators fail to agree to the appointment of the third arbitrator within next thirty days of their appointment on the application of any of the parties, the civil court shall appoint such arbitrator except in respect of international commercial arbitration in which case the Chief Justice or any other judge of the Supreme Court nominated by the Chief Justice shall appoint such arbitrator.

The law also provides that arbitration tribunal shall be competent to direct any of the parties to take any interim measures, and such order will not be appealable. Arbitration tribunal with the consent of the parties at any stage of the arbitration proceeding may settle the dispute by mediation, compromise or any other means. Arbitration tribunal shall be competent to appoint expert or legal advisor to submit report to it on specified question and assessors for assisting it on technical matters. On the application within sixty days of receipt of the arbitration award by any of the parties in case of any arbitration award made under this law other than an award made in an international commercial arbitration, the civil court and in case of award given in respect of international commercial arbitration held in Bangladesh the High Court Division may set aside such award. An appeal shall lie to the High Court Division against an order of the civil court setting aside or refusing to set aside an award or refusing to execute a foreign arbitration award. [Kazi Ebadul Hoque]