Arbitration Act 2001

Md. Rashed Khan MBA

Barrister-at-Law
Advocate
Supreme Court of Bangladesh
 OBJECTIVE OF ARBITRAITON
• M/s Stratus Construction Co. vs Government of Bangladesh
22 BLD (HCD) 2002 236

– The purpose of arbitration is to settle the disputes,

specially the commercial disputes, promptly.

– So that the litigant business men can move on with their

commercial pursuits to their own benefit as well as of the
country as a whole, instead of spoiling their efforts in
dragging on fruitless and sometimes in circuitous
litigations causing loss to their business efforts leading to
the ultimate national waste.
 The Arbitration Act, 2001

• Name of the Act- The Arbitration Act, 2001

• Jurisdiction: The whole of Bangladesh

• Date of Commencement: 2001

• Total Sections: 59
 The Arbitration Act, 2001

• Arbitration means any arbitration whether or not

administered by institution.
 The Arbitration Act, 2001
• Institutional Arbitration:Kunming International Commercial
Arbitration Service Centre (KICASC)
 The Arbitration Act, 2001
• Institutional Arbitration:Kunming International Commercial
Arbitration Service Centre (KICASC)
 The Arbitration Act, 2001
• Institutional Arbitration:Kunming International Commercial
Arbitration Service Centre (KICASC)
 The Arbitration Act, 2001

• “Arbitration agreement” means an agreement by the

parties to submit to Arbitration all or certain disputes
which have arisen or which may arise between them in
respect of a defined legal relationship, whether
contractual or not.
 The Arbitration Act, 2001

• “Arbitration tribunal” means a sole Arbitrator or a panel of

Arbitrator.

• “Arbitral award” means a decision by the arbitral tribunal on the

issue in dispute.

• “Court” means District Judge’s Court and includes Additional

Judge’s Court appointed by the Government for discharging the
functions of District Judge’s Court under this Act through
Gazette notification.
 The Arbitration Act, 2001

• “International Commercial Arbitration” means an

– Arbitration relating to disputes arising out of legal
‘relationships, whether contractual or not,

– considered as commercial under the law in force in

Bangladesh and

– where at least one of the parties is —

– “an individual who is a national of or habitually
resident in, any country other than Bangladesh; or
 The Arbitration Act, 2001
S. 2(c)

• “International Commercial Arbitration”

• where at least one of the parties is —
– a body corporate which is incorporated in any country other
than Bangladesh; or

– a company or an association or a body of individuals whose

central management and control (CMC) is exercised in any
country other than Bangladesh, or

– the Government of a foreign country;

International Commercial Arbitration
S. 2(c)
• HRBC-Intraco (BD) Joint Venture vs Bangladesh 19 BLC
(2014) 219

• The learned additional Attorney General Mr. Murad Reza

appearing along with Mr. AKM Zahirul Huq and assistant
Attorney General Mr. Md. Motiur Rahman submits that it has
been recorded by the CW-1 (Claimant witness No. 1) that the
joint venture partner HRBC (a company incorporated in China)
has withdrawn from the joint venture.

• As such on the date of filing the application HRBC is not a

claimant and the joint venture agreement (JVA) has ceased to
exist and in consequence the so called attorney has also ceased
to be attorney of the joint venture partners for all practical purposes.
 International Commercial Arbitration
S. 2(c)
• HRBC-Intraco (BD) Joint Venture vs Bangladesh 19 BLC
(2014) 219

• Accordingly the learned Additional Attorney General emphatically

submits that when one of the principals i.e. the foreign component
(HRBC) is no longer a party to the applications, the applications
filed before this court is not at all maintainable inasmuch as these
does not refer to any dispute coming within the scope of
international commercial arbitration as defined under section 2 of
the Act.

• The claimant themselves have admitted at paragraph No. 17 of the

said notice that their foreign counterpart HRBC was trying to
illegally back out of the JVA
 International Commercial Arbitration
S. 2(c)
• HRBC-Intraco (BD) Joint Venture vs Bangladesh 19 BLC
(2014) 219
• Having considered the award, I find that CV1 has unequivocally
admitted that joint venture partner has withdrawn from the JVA for
the reason best known to them.

• Besides this position has been admitted in the notice dated 15.7.2011
of the claimant whereby they have appointed their arbitrator.

• This application under section 42(2) read with section 43 has been
filed on 22.7.2013 although affidavit was sworn on 5.3.2013.

• As such at the time of filing of this application evidently HRBC was not
a claimant when the applications were filed before this court.
 International Commercial Arbitration
S. 2(c)
• HRBC-Intraco (BD) Joint Venture vs Bangladesh 19 BLC
(2014) 219

• In the light of the facts and law consulted above, I am of the

considered view that these two applications filed in this court do
not fall with in the ambit of international commercial arbitration

• Hence none of these applications are maintainable.

 The Arbitration Act, 2001

• “Foreign arbitral award” means an award which is made

in pursuance of an Arbitration agreement in the
territory of any state other than Bangladesh but it does
not include an award made in the territory of a
specified state;
– Goenka Impex SA vs Tallu Spinning Mills Ltd ( 2ALR (2013)
427): UK

– Smith Co-Generation Pvt Ltd vs BPDB 7 LG (2010) HCD 284:

UK
 Arbitration Clause
15. Dispute Resolution
15.1 It is the intention of the parties to use their reasonable best efforts to informally resolve, where
possible, any dispute, claim, demand or controversy arising out of the performance of this Agreement by
mutual negotiation and cooperation.
15.2 In the event that the parties are unable to informally resolve any dispute, claim, demand, controversy or
cause of action of every kind and nature whatsoever, known or unknown, vested or contingent, that
such party may now have or at any time in the future claim to have based in whole or in part, or arising
from or that in any way is related to the negotiations, execution, interpretation or enforcement of this
Agreement (collectively, the "Disputes"), the parties agree that such Disputes shall be completely and
finally settled by submission of any such Disputes to arbitration before a single arbitrator under the
Rules of Conciliation and Arbitration of the International Chamber of Commerce then in effect. Unless
the parties agree otherwise, the arbitration proceedings shall take place in Los Angeles, California,
U.S.A., and the arbitration proceedings hereunder shall be conducted in English. The award of the
arbitrator shall be in writing, shall be final and binding upon the parties, shall not be appealed from or
contested in any court and may, in appropriate circumstances, include injunctive relief. Judgment on
such award may be entered in any court of appropriate jurisdiction, or application may be made to that
court for a judicial acceptance of the award and an order of enforcement, as the party seeking to enforce
that award may elect.
 The Arbitration Act, 2001
• Section 3-Scope

– S 3(1): This Act shall apply where the place of Arbitration is in Bangladesh.

– S 3(2): Notwithstanding anything contained in sub-section (1) of this

section,

– The provisions of sections 45 (Recognition and enforcement of Foreign arbitral

awards), 46 (Grounds for refusing recognition or execution of foreign arbitral awards ),
and 47 (Power of Government to declare specified state ) shall also apply to the
arbitration if the place of that arbitration is outside Bangladesh.
 The Arbitration Act, 2001

• Section 7- Jurisdiction of Court in respect of matters covered by

arbitration agreement.

– S 7 where any of the parties to the arbitration agreement files a legal

proceedings in a Court against the other party, no judicial authority
shall hear any legal proceedings except in so far as provided by this
Act.
– Sajid Washing and Dying Limited vs Bangladesh 19 BLC (2014) 502

– Without exhausting the alternative forum of Arbitration writ petition is not

maintainable.
 The Arbitration Act, 2001
• Section 7A- Powers of court and High Court Division to make interim orders:
– ....unless the parties agree otherwise,

– upon prayer of either parties

– before or during continuance of the proceedings or

– until enforcement of the award under section 44 or 45 in the case of

international commercial arbitration

– the High Court Division and the District court may pass order in the
following matters:
 The Arbitration Act, 2001
• Section 7A- Powers of court and High Court Division to make interim orders in the
following matters:
– To appoint guardian for minor or insane to conduct on his/her behalf arbitral proceedings.

– To take into interim custody of or sale of or other protective measures in respect of goods or
property included in the arbitration agreement.

– To restrain any party to transfer certain property or

– pass injunction on transfer of such property which is intended to create impediment on the way of
enforcement of award.

– Cottonex Ansalt, Austrasse vs Comilla Spinning Mills Limited, Arbitration Application 18/2016 
 The Arbitration Act, 2001

• Section 7A- Powers of court and High Court Division to make interim orders
in the following matters:
– To empower any person to seize, preserve, inspect, to take photograph, collect
specimen, examine, to take evidence of any goods or property included in arbitration
agreement and for that purpose to enter into the land or building in possession of any
party.

– To issue ad interim injunction;

– To appoint receiver; and

– To take any other interim protective measures which may appear reasonable or
appropriate to the court or the High Court Division.
 The Arbitration Act, 2001
• Section 9- Form of arbitration agreement
– An arbitration agreement may be in the form of an arbitration clause in a
contract or in the form of a separate agreement.

– an arbitration agreement shall be deemed to be in writing If it is contained in

– a document signed by the parties;

– an exchange of letters, telex, telegrams, Fax, e-mail or other means of

telecommunication which provide a record of the agreement; or

– an exchange of statement of claim and defence in which the existence of the

agreement is alleged by one party and not denied by the other.
 Section 9
Existence of Arbitration Agreement
• Corona Fashion vs Milestone Clothing 15 ALR (2019) HCD
38

• From the marginal notice (Head note) of section 9 of the

Arbitration Act, it is vividly clear that the provisions of this
section are about the form of arbitration agreement.

• Section 9(2) of the Arbitration Act provides, among others

that an arbitration agreement must be in writing and the
agreement may be deemed to be in writing if it is contained
in a contract signed by the parties or contained in written
communications as elaborated in clauses in (a) to (c) under
section 9(2) of the Arbitration Act.
 The Arbitration Act, 2001
• Section 10- Arbitrability of the dispute.-

– (1) Where any party to an arbitration agreement or any person

claiming under him commences any legal proceedings against any
other party to the agreement or any person claiming under him

– in respect of any matter agreed to be referred to arbitration,

– any party to such legal proceedings may, at any time before filing a written
statement, apply to the Court before which the proceedings are pending to
refer the matter to arbitration
 The Arbitration Act, 2001
• Section 10- Arbitrability of the dispute.- Time to make
application:
• World Trade Shipping vs Sonat International Inc. (19 BLC(2014) 302

– In any party by disregarding the arbitration clause institutes a

suit, the other party must raise objection before filing of the
written statement, otherwise that would be deemed as an
waiver of the condition.
 The Arbitration Act, 2001
• Section 10- Arbitrability of the dispute.-
– (2) Thereupon, the Court shall, if it is satisfied that an arbitration agreement
exists,

– refer the parties to arbitration and stay the proceedings,

– unless the Court finds that

– the arbitration agreement is void, inoperative or is incapable of determination by

arbitration.

• FMA 22,47,48,49,54/2016
– B.C.I.C vs Monsur and Brothers (Domestic Arbitration)
 The Arbitration Act, 2001
• Section 10- Arbitrability of the dispute.-
• HRC Shipping Co. Ltd vs MV Ex-Press Monash and others (12MLR (HC) 265)

– Provision of s 10 applies equally to international commercial arbitration whether held in

Bangladesh or any other country.

• Uzbekistan Airways vs Air Span Ltd (10 BLC(2005) 615

– Section 10 of the Arbitration Act has no manner of application regarding foreign

arbitral proceeding

– Even though the foreign arbitral award can be enforced in this country pursuant to the
provisions of section 3(2) read with section 45 to 47 of the Act.
 The Arbitration Act, 2001
• Section 10- Arbitrability of the dispute.-
• STX Corporation Ltd vs Meghna Group (64 DLR (2012) 550)

– Provision of the Act of 2001 in not applicable to a foreign

arbitration except as provided in section 3(2) of the Act itself.-
(Supported Uzbekistan Airways Case)
 The Arbitration Act, 2001
• Section 10- Arbitrability of the dispute.-
• Project Builders Ltd vs China National Technical Import and Export
Corporation (69 DLR (2017) 290)

– Grant of interim measures is not within the purview of the Bangladeshi

courts and

– any decision to the contrary would render the plain words of section 3(1)
to be superfluous and redundant.

– By that reason alone the petitioner’s section 7Ka application also stands to
be dismissed. (Supported Uzbekistan Airways Case)
 The Arbitration Act, 2001
• Section 10- Arbitrability of the dispute.-
• Project Builders Ltd vs China National Technical Import and Export Corporation (69
DLR (2017) 290)

– FACT- Main contract between Chittagong WASA and CNTI for construction of Water
Treatment plant.

– Dispute as to subcontract agreement between CNTI and Project Buliders for

execution of civil construction work.

– By a letter dated 10.4.2014 CNTI served a notice of termination of the Subcontract

to Project Builders alleging deliberate delay amounting to breach of sub contract.
 The Arbitration Act, 2001
• Section 10- Arbitrability of the dispute.-
• Project Builders Ltd vs China National Technical Import and Export Corporation (69 DLR (2017)
290)

– FACT-
– Without referring the dispute to a Dispute Adjudication Board (DAB) as envisaged in
clause 20.4 of the Subcontract GC and in avoidance of any steps at a negotiated
resolution of the dispute; CNTI on 15.4.2014 conveyed its insistence on a termination.

– Project Builders sensing a shutting down of all avenues at a negotiated settlement

consequently invoked the parties Arbitration agreement as a last resort for settlement of
the dispute.
 The Arbitration Act, 2001
• Section 10- Arbitrability of the dispute.-
• Project Builders Ltd vs China National Technical Import and Export Corporation
(69 DLR (2017) 290)

– FACT-clause 20.7 of the Subcontract GC reads thus:

– Unless settled amicably, any Subcontract dispute in respect of which the
Subcontract DAB’s decision has not become final and binding shall be
finally settled under Rules of Arbitration of the International Chamber of
Commerce and main contract clause 20.6 (Arbitration) shall apply.
 The Arbitration Act, 2001
• Section 10- Arbitrability of the dispute.-
• Southern Solar Power vs BPDB, ( 2019 (2) 16 ALR (HCD) 91

– Supported HRC view

 Arbitrability of the Dispute
S 10

• World Trade Shipping vs Sonat International Inc. 19 BLC

(2014) 302:
– It is now a well settled principle that if any party by
disregarding the arbitration clause institutes a suit, the other
party must raise objection before filing of the written statement
, otherwise that would be deemed as an waiver of the
condition.
 The Arbitration Act, 2001

• Section 11- Number of arbitrators.

– The parties are free to determine the number of

arbitrators.

– Failing the determination of a number the tribunal shall

consist of three arbitrators.

 The Arbitration Act, 2001

• Section 11- Number of arbitrators.

– Unless otherwise agreed by the parties, where

they appoint an even number of arbitrators,

– The appointed arbitrators shall jointly appoint an

additional arbitrator who shall act as a chairman
of the tribunal.
 The Arbitration Act, 2001

• Section 12- Appointment of arbitrators.

– The parties are free to agree on a procedure for appointing

the arbitrator or arbitrators.

– A person of any nationality may be an arbitrator, unless

otherwise agreed by the parties.
 The Arbitration Act, 2001
Section 12- Appointment of arbitrators

• Arbitration notice:

– Written request to the other party to agree on arbitration and

appoint Arbitrator within 30 days of receipt of written request.

• Domestic Arbitration with single Arbitrator:

– If Arbitration notice fails

– Upon request Arbitrator shall be appointed by the District judge

within whose jurisdiction the Arbitration Agreement has been entered
into.
 The Arbitration Act, 2001
Section 12- Appointment of arbitrators
• Domestic Arbitration: with 3 Arbitrators

– In domestic arbitration with three arbitrators, each party shall appoint one
arbitrator,

– The two appointed arbitrators shall appoint the third arbitrator who shall be
Chairman of the arbitral tribunal

– The appointed arbitrators fail to agree on the third arbitrator within thirty
days of their appointment, the appointment shall be made by the District
judge within whose jurisdiction the Arbitration Agreement has been entered
into.
 The Arbitration Act, 2001
Section 12- Appointment of arbitrators

• Domestic Arbitration: with 3 Arbitrators

– Appointment of 3rd Arbitrator

– Bangladesh Water Development Board vs Additional

District Judge, 6th Court Chittagong (24 BLC (2019) HCD
275)
 The Arbitration Act, 2001
Section 12- Appointment of 3rd arbitrators
• Bangladesh Water Development Board vs Additional District Judge, 6th
Court Chittagong (24 BLC (2019) HCD 275)

– After completion of work respondent No. 2 submitted final bill

– BWDB paid bill in part deducting some items

– Respondent No. 2 claimed to settle the bill in full but the petitioner
BWDB did not pay any heed.

– Three committees were formed to settle the claim but yielded no

result.
 The Arbitration Act, 2001
Section 12- Appointment of 3rd arbitrators
• Bangladesh Water Development Board vs Additional District Judge, 6th Court
Chittagong (24 BLC (2019) HCD 275)

– The respondent No. 2 as 1st Party served notice on 29.4.2013 upon the
petitioner for arbitration vide clause 65.2 of the contract agreement
informing that the 1st party nominated Mr. Md. Abdul Quddus an advocate
of Chittagong District Bar Association as arbitrator

– and requested 2nd Party Petitioner to appoint arbitrator within 30 days

from the date of receipt of notice complying provision of Subsection 4(b)©
of section 12 of the Arbitration act.
 The Arbitration Act, 2001
Section 12- Appointment of 3rd arbitrators
• Bangladesh Water Development Board vs Additional District Judge, 6th Court
Chittagong (24 BLC (2019) HCD 275)

– In response the petitioner (BWDB) appointed Mr. Md. Humayun Kabir, a

retired Chief Engineer of B WDB as its artibrator.

– Both the arbitrators failed to agree regarding appointment of third arbitrator.

– Due to disagreement 1st party respondent filed an application in the court of

learned District Judge, Chitttagong, under sub section 4(b)© of section 12
of the Arbitration Act praying for appointmetn of third Arbitrator proposing
3 names.
 The Arbitration Act, 2001
Section 12- Appointment of 3rd arbitrators
• Bangladesh Water Development Board vs Additional District Judge, 6th
Court Chittagong (24 BLC (2019) HCD 275)

– The application was registered as Miscellaneous case No. 1 of 2014.

– The petitioner herein (BWDB) as 2nd party filed written objection

denying averments made in the application and contending interalia
that after completion of construction work 1st party respondent
submitted final bill incorporating some items beyond the contract
agreement as such those bills were not paid.
 The Arbitration Act, 2001
Section 12- Appointment of 3rd arbitrators
• Bangladesh Water Development Board vs Additional District Judge, 6th
Court Chittagong (24 BLC (2019) HCD 275)

– Further contending that nature of the arbitration work requires a

person having technical knowledge to be appointed as trird arbitrator
to resolve the dispute and proposed names of three persons;

– one is a retired chief engineer another is a Professor Chittagong

University of Engineering and Technology and

– third one is a Retired District and Sessions Judge.

 The Arbitration Act, 2001
Section 12- Appointment of 3rd arbitrators
• Bangladesh Water Development Board vs Additional District Judge, 6th Court
Chittagong (24 BLC (2019) HCD 275)

– After hearing the parties and perusing papers/documents, learned

Additional District Judge, 6th Court, Chittagong, appointed Mr. Rezaul
Karim and Advocate and former president of Chittatong Distric Bar
Association as third arbitrtor holding that:

• I hold that it will be proper to appoint a person who has not been
proposed by either party and who has legal expertise to explain and
decide legal term of the contract.
 The Arbitration Act, 2001
Section 12- Appointment of arbitrators

• International Arbitration with single Arbitrator:

– If Arbitration notice fails

– Upon request Arbitrator shall be appointed by the High

Court Division (Company Bench)
 The Arbitration Act, 2001
Section 12- Appointment of arbitrators
• International Commercial Arbitration:

– in international commercial arbitration with three arbitrators, each party shall appoint
one arbitrator,

– The two appointed arbitrators shall appoint the third arbitrator who shall be Chairman
of the arbitral tribunal

– If a party fail to appoint his arbitrator after receiving arbitration notice or the appointed
arbitrators fail to agree on the third arbitrator within thirty days of their appointment,

– The appointment shall be made by the High Court Division (Company Bench)
• The Industrialization Fund for developing Countries v Northern Corporation Ltd. (30
BLD(HCD) 2010 623)
 The Arbitration Act, 2001
Section 17- Competence of Arbitral Tribunal

• Unless otherwise agreed by the parties, the arbitral tribunal may

rule on the following issues:
– whether there is existence of a valid arbitration agreement.

– whether the Arbitral Tribunal is properly constituted

– whether the arbitration agreement is against the public policy

– whether the arbitration agreement is incapable of being performed

– whether the matters have been submitted to arbitration in accordance

with the arbitration agreement
 The Arbitration Act, 2001
Section 18- Severability of agreement

• An arbitration agreement which forms part of another

agreement shall be deemed to constitute:

– a separate agreement

– while giving decision for the purpose of determining the

jurisdiction of the arbitral tribunal.
 The Arbitration Act, 2001
Section 18- Severability of agreement

• Drilltee-Maxwell Joint Venture vs GTCL 21 BLC (2016) 122:

– Merely because the contract has come to an end by its

termination due to breach, the arbitration clause does not
get perished nor rendered inoperative;

– Rather it survives for resolution of disputes arising in

respect of or with regard to or under the contract.
 The Arbitration Act, 2001
Section 23- Competence of Arbitral Tribunal

• Responsibilities of Arbitral Tribunal:

– Shall deal with any of the dispute submitted to it fairly and impartially
– To give each party each party reasonable opportunity to present his
case orally or in writing or both
• Saudi Arabian Airlines Corporation vs M/S Saudi-Bangladesh Service Company (15 MLR
(2010)(AD) 153)

– To give parties reasonable opportunity to examine all the documents

and other relevant materials

– To deal with a dispute submitted to it as quickly as possible.

 The Arbitration Act, 2001

• Procedure to be followed by the Arbitral Tribunal:

– The arbitral tribunal not bound by the Code of Civil Procedure
and the Evidence Act (s 24)

– the arbitral tribunal shall follow the procedure to be agreed on

all or any by the parties in conducting its proceedings

– In the absence of any agreement as to the procedure the

arbitral tribunal shall decide, procedural and evidential matters
in conducting its proceedings. (25)
 Place of Arbitration
S 26
• The parties shall be free to agree on the place of arbitration
• Failing such agreement the place of arbitration shall be determined by the arbitral
tribunal having regard to

– the circumstances of the case, including the

– convenience of the parties .

• The arbitral tribunal may meet at any place it considers appropriate for:
– hearing witnesses,

– Hearing experts or the parties

– for inspection of documents, goods or other property.

 Place of Arbitration
S 26

• Uzbekistan Airways vs Air Span Ltd (10 BLC(2005) 615:

– Taskent, Uzbekistan

• Project Builders Ltd vs China National Technical Import and Export

Corporation (69 DLR (2017) 290)
– London, UK

• Saudi Arabian Airlines Corporation vs M/S Saudi-Bangladesh Service

Company (15 MLR (2010)(AD) 153)
– Dhaka, Bangladesh
 Place of Arbitration
S 26

• Mosharaf Composite Textile Mills Ltd. vs ECom Agroindustrial

Corp. Ltd. ( 13ADC (2016) 46)
– International Cotton Association, Liverpool, UK
 Commencement of arbitral proceedings
S 27

• The proceedings shall be deemed to have commenced if:

– any dispute arises where the concerned arbitration

agreement applies

– any party to the agreement has received from another

party Arbitration notice:

• To refer the dispute to arbitration

• To Appoint arbitrator
 Commencement of arbitral proceedings
S 27
• Siemens Bangladesh Ltd vs RZ Power Ltd 17 BLC (2012) 772:
– The dispute as to the breach of conditions laid down in the PG itself is the
subject matter of arbitration.

– The petitioner has already appointed arbitrator and according to the

provision of section 27 of the Act, the artibration proceeding has already
been commenced.

– The disputed question as to whether the PG has been placed in the bank,
before or after it has expired is to be decided by the arbitrators, not by the
court.
 Evidence before the arbitral tribunal
S 34

• Evidence may be given before the arbitral tribunal

– orally or

– in writing or

– by affidavit

• The arbitral tribunal may administer an oath or affirmation to a

witness subject to his consent
 Rules applicable to substance of dispute
S 36

• The arbitral tribunal shall decide the dispute in accordance with the rules of law
as are designated by the parties-

• Any designation by the parties of the law or legal system of a given country
shall be construed as directly referring to the substantive law of that country-
British Law, Indian Law, Law of Switzerland, UAE……

• Failing any designation of the law by the parties, the arbitral tribunal shall
apply the rules of law it considers to be appropriate given all the circumstances
surrounding the dispute.
 Rules applicable to substance of dispute
S 36

• Goenka Impex SA vs Tallu Spinning Mills Ltd ( 2ALR (2013) 427)

– Rules of International Cotton Association

• Smith Co-Generation Pvt Ltd vs BPDB 7 LG (2010) HCD 284: UK

– ICC Rules

• Project Builders Ltd vs China National Technical Import and Export

Corporation (69 DLR (2017) 290)
– ICC Rules
 Rules applicable to substance of dispute
S 36

• Mosharaf Composite Textile Mills Ltd. vs ECom Agroindustrial

Corp. Ltd. ( 13ADC (2016) 46)
– Rules of International Cotton Association
 Decision of Arbitration

• Unless otherwise agreed by the parties, in arbitral

proceedings with more than one arbitrator, any decision of
the arbitral tribunal shall be made by a majority of all its
members (s 37)

• An arbitral award shall be made in writing and shall be

signed by the arbitrator or arbitrators. (s 38)
Decision of Arbitration
Decision of Arbitration
 Decision of Arbitration

• TCB vs M/S Trio Holongram 15 ALR (2019) AD 111

• Both the parties appointed their respective Arbitrators, who

could not concur with each other in their opinion and gave
different awards.

• Thereafter the Chairman of the Arbitral Tribunal finally

arrived at his own decision with a completely separate award
on 20.02.2013.
 Decision of Arbitration

• TCB vs M/S Trio Holongram 15 ALR (2019) AD 111

• In the above award the Chairman of the Arbitration Tribunal

accepted the price for 10% defected Dal at tK 78 per K.G as
fixed by the Price Fixation Committee of TCB and also
declared that the respondent is entitled to get refund of TK.
9500000 deposited by the respondents as performance
security forfeited by the petitioner.
 Finality of Award
s 39

• Arbitral award shall be final and binding on both the parties

and on any persons claiming through or under them (s 39).

• The right of a person to challenge the arbitral award in

accordance with the provisions of this Act shall not be
affected.
 Application for setting aside arbitral award
s 42
• The District Judge may set aside any arbitral award of Domestic Arbitration on
the application of a party.
– Maisha Corporation vs BSMMU, 18 BLC(2013) HCD 194

• The High Court Division may set aside any arbitral award made in an international
commercial arbitration held in Bangladesh on the application of a party.
– Saudi Arabian Airlines Corporation vs M/S Saudi-Bangladesh Service Company (15 MLR (2010)
(AD) 153)

• Limitation Time to make application:

– within 60 sixty days from the receipt of the award.
 Grounds for setting aside arbitral award
s 43

• The party making the application furnishes proof that:

– a party to the arbitration agreement was under some incapacity

– the arbitration agreement is not valid under the law to which the
parties have subjected it

– Proper notice was not served regarding arbitration

– Unable to present his case for reasonable reason

– The arbitral award deals with a dispute not contemplated by or not

falling within the terms of the submission to arbitration or
 Grounds for setting aside arbitral award
s 43

• The party making the application furnishes proof that:

– it contains decision on matters beyond the scope of the
submission to arbitration.

– the composition of the arbitral tribunal or the arbitral

procedure was not in accordance with the agreement of the
parties

– or was not in accordance with the provisions of this Act

 Grounds for setting aside arbitral award
s 43
• The party making the application furnishes proof that: VINUATOS COMP
– Validity of Arbitration agreement is questionable

– Incapacity of a party to the arbitration agreement

– Notice not given of appointment of arbitrator

– Unable to present case due to reasonable reason.

– Award dealing with a dispute beyond Terms of Submission

– Award dealing with a dispute beyond contemplation of parties

– Award dealing with a dispute beyond scope to submission to Arbitration.

– Composition of tribunal and procedure was not in accordance with the arbitration
agreement or Act.
 Grounds for setting aside arbitral award
s 43
• If the court or the High Court Division is satisfied that—
– the subject-matter of the dispute is not capable of settlement by
arbitration under the law in Bangladesh

– the arbitral award is prima facie opposed to the law in

Bangladesh:
• Cottonex Ansalt, Austrasse vs Comilla Spinning Mills Limited,
Arbitration Application 18/2016 ( opposed to FERA 1947, Import
policy order)
 Grounds for setting aside arbitral award
s 43
• If the court or the High Court Division is satisfied that—
– the arbitral award is in conflict with the public policy of
Bangladesh:
• Chittagong Port Authority vs Ananda Shipyard and Slipways Ltd. 63
DLR (2011) 226

• BCIC vs Mansur Brothers, FMA 22, 47, 48, 49, 54/2016

– the arbitral award is induced or affected by fraud or corruption.

• Saudi Arabian Airlines Corporation vs M/S Saudi-Bangladesh
Service Company (15 MLR (2010)(AD) 153)

• Maisha Corporation vs BSMMU, 18 BLC(2013) HCD 194

 Grounds for setting aside arbitral award
s 43
• If the court or the High Court Division is satisfied that— NOCAFI
1. not capable of settlement by arbitration under the law: Subject matter

2. opposed to the law for the time being in force -Award

3. conflict with the public policy of Bangladesh-Award

4. Affected by fraud or corruption-Award

5. Induced by fraud or corruption-Award.

– Saudi Arabian Airlines Corporation vs M/S Saudi-Bangladesh Service Company (15 MLR (2010)
(AD) 153)

– Maisha Corporation vs BSMMU, 18 BLC(2013) HCD 194

 Award in conflict with the
public policy of Bangladesh (s 43)
• Chittagong Port Authority vs Ananda Shipyard and Slipways Ltd. 63 DLR (2011)
226
– The phrase "public policy of Bangladesh used in section 43 of arbitration Act to be
given wider meaning.

– Thus an award to be refused, as being contrary to public interest if it is contrary to-

• (i) Fundamental policy of Bangladesh law

• (ii) Interest of Bangladesh

• (iii) Justice or morality

• (iv) In addition, if it is patently illegal

 Enforcement of Foreign arbitral award
s 45
• A foreign arbitral award shall be enforced by execution by the Court
under the Code of Civil Procedure, in the same manner as if it were
a decree of the Court.
– Goenka Impex SA vs Tallu Spinning Mills Ltd ( 2ALR (2013) 427, 21 BLT 212)
– Execution of International Cotton Association Award

– Smith Co-Generation Pvt Ltd vs BPDB 7 LG (2010) HCD 284

– Execution of ICC Arbitration Award
 Enforcement of Foreign arbitral award
s 45
• Smith Co-Generation Pvt Ltd vs BPDB 7 LG (2010) HCD 284
• The petitioner in order to enforce the Awards of the International
Court of Arbitration in Bangladesh on 10-8-2004 filed Money
Execution Case No. 4 of 2004 before the Court of District Judge,
Dhaka for recovery of Taka 84,75,44,524.80 along with interest in
accordance with section 45 of the Arbitration act, 2001.
 Enforcement of Foreign arbitral award
s 45
• An application for the execution of a foreign arbitral award
shall be accompanied by —
– the original arbitral award or a copy thereof duly authenticated
in the manner required by the law of the country in which it
was made;

– the original agreement for arbitration or a duly certified copy

thereof and
– such evidence as may be necessary to prove that the award is a
foreign award.
 Appeals
S 48

• An appeal shall lie from the following orders of the Court to

the High Court Division, namely -
– Setting aside or refusing to set aside an arbitral award under sub-
section of section 42

– Refusing to enforce the arbitral award under section 44

– Refusing to recognize or enforce any foreign arbitral under section 45.

– Goenka Impex SA vs Tallu Spinning Mills Ltd ( 2ALR (2013) 427, 21 BLT
212)
Thank you.