BIAC-a center for alternative dispute resolution

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10. What is the role of an arbitrator in arbitration proceedings?

The arbitrator acts as a private judge in arbitration. Though nominated by one of the parties, or jointly by the parties, he is neutral. He will hear the witnesses, examine evidences, apply the law, and render the award.

Source: BIAC

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11. What is BIAC's role as a claimant at the arbitration?

Although it is more informal than traditional litigation, arbitration is an adversarial process. If you are a claimant, you will be required to present your case by filing your claims, calling witnesses, presenting documentary evidences, and making arguments to convince the arbitrator that he or she should rule in your favour. It is generally advisable to engage one or more counsel to present your case before the arbitration tribunal.

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12. How long does arbitration last?

Everything depends on complexity of the case and willingness of the parties. If both the parties are in agreement to conclude the arbitration proceedings expeditiously, it is possible to conclude it within shortest possible time. It is difficult to indicate a general time limit in arbitration. In institutional arbitration, the Rules followed will have clear guidelines for each stage of the process; however, the Tribunal will have authority to extend the time limits in exceptional cases.

Source:BIAC

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13. Is the arbitration process confidential?

The arbitration proceedings are confidential and not open to the public. All persons permitted to be present in arbitration proceedings, such as the parties and their representatives, arbitrators and witnesses are expected to maintain confidentiality about the arbitration proceedings. The final award of the arbitrator(s) is also confidential. However, when the award is taken to a court for a decree, it becomes a public document.

Source:BIAC

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14. What is an arbitration claim?

An arbitration claim is a statement of injury together with a request for compensation in either an estimated or certain amount, and/or that the other party performs or quit performing some act. A claim is presented by the initiating party in his/her Request for Arbitration and by the responding party in his/her Response to Request. These claims may be changed during the arbitration proceedings. The claim can also contain a request for provisional/ interim measures.

source:BIAC

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15. What is an arbitration award?

An arbitration award is decision of the Arbitral Tribunal arrived at on the basis of terms of the contract, evidences adduced by the parties during arbitration and in accordance with the rules of law as are designated by the parties. Under Bangladesh Arbitration Act of 2001 [section 36(2)], if the parties fail to designate the law the Arbitral Tribunal shall apply the rule of law it considers appropriate. An arbitration award shall be made in writing, signed by the arbitrator(s) and shall state its date and place. Where there is more than one arbitrator, decision of the tribunal should be made by the majority of the members. In most jurisdictions, the arbitrators are not required to render a written explanation of his/her decision with the award. Under Bangladesh law no reasons have to be stated by the arbitral tribunal where the parties have agreed that no reasons are to be given. An arbitration award is legally enforceable in the court of the state or country having jurisdiction over the dispute and can be set aside or challenged under very limited circumstances.

Source:BIAC

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16. The arbitration is over and I receive an award, what shall I do next? How can I get an arbitral award enforced in Bangladesh? What are the grounds to set aside an arbitral award?

On receipt of the award you should examine the award minutely and decide if you need any correction or interpretation.

Once an arbitration award is received by the parties, the grounds for seeking changes are extremely limited and must be exercised within the stipulated time. Under BIAC Arbitration Rules, it is 14 days from the date of receipt of the award by the party, who may request the arbitral tribunal with a notice to the other party, to correct any computation error, clerical or typographical error or any other error of similar nature occurring in the award or to give an interpretation of a specific point in the award. If the arbitral tribunal finds the request justified, it will correct the award accordingly within 14 days of receipt of the request.

Under Bangladesh law, a competent court may set aside an arbitration award on the application of a party within 60 days from the receipt of the award by the party. The grounds for setting aside of the arbitration award are limited by the Arbitration Act 2001. If the other party does not apply to the court to set aside the award within this period and/ or fails to implement the award, you should apply to the competent court for enforcement of the award.

Arbitral Award is final & binding (Rule 24 sub rule 10). However the court may set aside the award on application of a party within 60 days from receipt of the award. 

Section 43 of the Arbitration Act 2001 laid down grounds to set aside an arbitral award.

An arbitral award may be set aside if the party furnishes proof that

a. A contracting party was under some incapacity;

b. Arbitration agreement was not valid;

c. The party making application was not notified properly;

d. Arbitral award deals with a dispute not falling within the scope of the arbitration agreement;

e. Constitution of the tribunal was not in conformity with the arbitration agreement;

f. Dispute was not arbitrable, award was conflicting with laws or public policy of Bangladesh;

g. Award was induced or affected by fraud or corruption.

source: BIAC

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17. What if I am unhappy with the arbitrator’s decision – is there any appeal process?

Under Bangladesh law, arbitral awards may be set aside by the court. However, the grounds on which this can be done are very limited and specified clearly. In general, the court will treat the arbitral award as final unless specific provisions of the law have been violated or the award has violated the grounds specified under section 43 of the Arbitration Act 2001.

source:BIAC

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18. What are the differences between arbitration and mediation?

Both arbitration and mediation are forms of alternative dispute resolution (ADR) that allow parties to settle disputes outside of the court system. In arbitration, two parties generally present evidence to a neutral third-party arbitrator(s), who consider(s) the provisions of the contract, evidences adduced, applies the law and renders a binding decision. The party, against whom the award has gone, may appeal to the court to set it aside under very limited circumstances.

In mediation, two parties generally work with the neutral third-party mediator to reach a mutually agreed solution to a dispute. Here the mediator helps both the parties to resolve the dispute themselves. Since this is a mutually-agreed settlement, it is likely to be implemented by the parties themselves. The settlement agreement concluded through the process of mediation is binding on both the parties and enforceable through court.

source:BIAC

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19. Can the mediator “force” the parties to settle?

No. A mediator cannot force the parties to settle. He can only facilitate settlement of the dispute between the parties. The parties themselves must agree on the terms of the settlement.

source:BIAC

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20. What happens after the parties settle their dispute through mediation?

After a settlement is reached through mediation, the parties would normally sign the terms of settlement drafted by the mediator (with the assistance of both sides and their respective lawyers if they so desire). If mediation does not resolve the dispute, then the parties have the freedom to take recourse to other legal remedies, such as arbitration (if they agree, and the matter is arbitrable) or litigation in court.

source:BIAC

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21. What are the different types of arbitration?

In general, there are two types of arbitration: Institutional or Administered and Ad hoc.

 

Institutional Arbitration: where parties adopt rules and processes of an arbitral institution which manages the process. Institutional or administered arbitration proceedings are administered by an arbitration institute, such as the Bangladesh International Arbitration Centre (“BIAC”), the International Chamber of Commerce (“ICC”), etc. These are conducted under the arbitration rules of the institution concerned.

 

Ad hoc Arbitration: where parties construct a process themselves. Ad hoc arbitrations are arranged solely between the arbitrators and the parties. They may adopt a readymade set of arbitration rules or simply work under the directions of the arbitral tribunal. The arbitral tribunal and the parties ensure that the laws of the place of arbitration are not violated.

 
source:BIAC

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22. What are the advantages of Institutional Arbitration over that of Ad hoc Arbitration?

Advantages of Institutional Arbitration:
a. Institution provides support services,
b. Institution’s have declared procedures and schedules,
c. Institution provides hearing facilities,
d. Appointment of neutral arbitrator from a panel, where the party-nominated arbitrators are unable to agree on the third arbitrator,
e. Quality Control,
f. Timeliness

In administered arbitration, scope of uncertainty relating to appointment of arbitrators, their fees, time frame of arbitration, determining challenges to arbitrators, interim measures etc are much less as set rules are followed.

Secondly, in administered arbitration, costs and time are better controlled under the supervision of an arbitration institution.

Thirdly, institutional or administered arbitration has the benefit of ensuring that the proceedings are proper, fair and according to the rules. Arbitration institutions may also exercise a degree of “quality control”. Adopting an established set of arbitration rules has the obvious benefit of avoiding arbitrators constantly having to “reinvent the wheel” in applying appropriate procedures.

There is transparency and predictability in institutional arbitration. The weaker of the parties will usually prefer institutional arbitration.

source:BIAC

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23. What are the advantages of ad hoc arbitration?

In ad-hoc arbitration, no administrative fees are payable to an arbitration institution. It may also provide the parties with flexibility to devise rules and procedures appropriate to their disputes. In practice, however, devising and agreeing to a set of ad hoc procedures may require substantial specialist input and detailed negotiation between the parties. Furthermore, there is no institutional check on the cost of arbitration, particularly on account of arbitrator’s fees.

Source: BIAC

[AbdurRahim]

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