Daffodil International University
Faculty of Humanities and Social Science => Law => Topic started by: farzanamili on November 27, 2013, 10:28:03 AM
-
Bangladesh International Arbitration Centre is the first international arbitration institution of the country. It is registered as a not-for-profit organization and commenced operations in April 2011 under a license from the Government. Three prominent business Chambers of Bangladesh, namely, International Chamber of Commerce-Bangladesh(ICC-B), Dhaka Chamber of Commerce & Industry(DCCI) and Metropolitan Chamber of Commerce & Industry(MCCI), Dhaka are sponsors of BIAC. The International Finance Corporation (IFC) – the private sector arm of The World Bank – with funds from UK Aid and European Union, is supporting BIAC in the initial stages under a co-operation agreement. BIAC provides a neutral, efficient and reliable dispute resolution service in this emerging hub of South Asia’s industrial and commercial activity. BIAC introduced its Arbitration Rules in April 2012. These Rules incorporate some of the leading developments in domestic and international arbitration, while conforming to the Bangladesh Arbitration Act 2001. BIAC is renowned for its first-rate, state-of-the-art arbitration facilities, experienced panel of independent arbitrators and excellence in serving its clients. Discover from the following posts why businesses increasingly choose to arbitrate in BIAC.
-
Very helpful.
-
People are not very much aware regarding the matter (ADR). It is the demand of time to get people involved with this system.
-
yes Sir, Now government is trying to make people acquainted with this system. As a representative of institutional mechanism, BIAC is giving regular training to personnel involved in various arena, such as, lawyer, teachers, bank officials, insurance officials. By these trainings people know more about ins and outs of alternative dispute resolution. The rest is involved with practical dispute resolution.
-
Advanced Arbitration Training (14-19 Dec)
Due to unavoidable circumstances, BIAC is obliged to reschedule the ‘Advanced Arbitration Training’ to 16-20 March 2014 (originally planned for 14–19 December 2013). This Advanced Arbitration Training is organized by Bangladesh International Arbitration Centre (BIAC) in association with experienced trainers from Washington DC-based International Law Institute (ILI). This training is for limited participants. Those who have interest in arbitration will be eligible to apply for the Advanced Arbitration Training.
As our preferred hotels (Ruposhi Bangla and Sonargaon) will remain fully booked for the T20 World Cup, we have made arrangements for this training at Hotel Sarina, Plot # 27, Road # 17, Banani C/A, Dhaka-1213. However, we will ensure that our participants are equally comfortable at this Hotel.
Date: 16-20 March 2014
Time: 9:30 am to 5:00pm
Venue: Hotel Sarina, Plot # 27, Road # 17, Banani C/A, Dhaka-1213.
Trainer: Joseph R. Profaizer and Carlos I. Davila
For further queries including registration & course fee, please contact:
BIAC
Ph: 964-1071, 964-1072 (please note BIAC’s new phone/fax numbers)
Fax: 964-1074; E-mail: info@biac.org.bd
-
facebook page: https://www.facebook.com/pages/Bangladesh-International-Arbitration-Centre-BIAC/251731951529106?sk=info
-
1. What is arbitration? What are its advantages?
Arbitration is a consensual method of dispute resolution outside the court system by one or more (usually three) independent and neutral arbitrators which the parties agreed voluntarily. The arbitral award is final and binding and is enforceable as a court’s decree. If the country where the award is given is a contracting state of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (also known as the New York Arbitration Convention), it may be enforced in any of the 148 countries that are members.
Advantages of Arbitration:
a. When subject matter of a dispute is highly technical, a party may choose an arbitrator with appropriate degree of specialization – this choice is not available in the court system.
b. Arbitral proceedings and awards are generally private and confidential.
c. Arbitration has greater degree of flexibility and ensures parties’ independence.
d. Arbitration generally leads to faster resolution of a dispute, than is available in a court.
e. Arbitral award is enforceable beyond the boundary of the state where the hearing is held – i.e., within any of the 148 New York Arbitration Convention countries.
-
2. Can I arbitrate a dispute when there is no arbitration clause in the relevant agreement?
Yes, if all parties to the dispute sign an agreement to arbitrate. It is advisable to have the arbitration agreement signed before the dispute has arisen, preferable in a suitable clause in the original contract.
Secondly, the dispute must be an arbitrable one.
According to section 9(2) of Arbitration Act of 2001, an arbitration agreement shall be in writing. An arbitration agreement shall be deemed to be in writing if it is contained in- (a) a document signed by the parties; (b) an exchange of letters, telex, telegrams, fax, e-mail or other means of telecommunication which provide a record of the agreement; or (c) 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.
source: BIAC
-
3. What is the difference between arbitration and litigation?
Litigation is a lawsuit, heard and adjudicated in court by judge(s). Arbitration, on the other hand, is the outcome of an agreement between two or more parties to a contract to resolve a dispute through a specific process outside of the courts. In arbitration, the disputant parties nominate one (or, three) neutral and independent arbitrator(s). It is responsibility of arbitrator/ arbitrators to examine claims and counter claims, to hear witnesses, to peruse evidence and to arrive at a decision known as an arbitral award. Unlike in litigation, the rights of appeal are limited in arbitration. Arbitral award is enforceable as a decree of court if the time for making an application to set aside the arbitral award under section 42 of the Arbitration Act 2001 has expired, or such application having been made has been refused (section 44 of the Arbitration Act 2001). The basic purpose of arbitration is to resolve certain types of disputes speedily, with confidentiality and by the parties’ chosen arbitrator(s).
source: BIAC
-
4. How do I know if I can choose arbitration instead of going to court?
As a first step, look at the contract. For example, a partnership contract may have an arbitration clause, which describes the scope of arbitration in the event of a dispute arising out of or in connection with the contract. In theory, even without such a clause in the agreement, the parties (not one party alone) may agree to opt for arbitration to resolve the dispute. In practice, however, once a dispute has arisen, it usually becomes difficult for parties to agree on any issue; hence, it is always advisable to conclude such agreement prior to any dispute.
source:BIAC
-
5. What types of disputes can be arbitrated?
Almost all types of civil disputes can be arbitrated. This includes contractual disputes, shareholder disputes, commercial disputes, family disputes, tort, etc. In some countries, a few categories of criminal cases are also resolved through arbitration. It is always advisable to check with your counsel to determine if the case is suitable for arbitration.
source: BIAC
-
6. What are the benefits of arbitration?
Arbitration provides distinct advantages over court litigation.
Arbitration is a private method of settling disputes; parties can tailor the arbitration proceeding in the manner they choose. For example, parties involved in arbitration can agree to limit the number of witnesses each side will present, set parameters on the amount and type of evidence that will be presented, and pre-determine what issues the arbitrator’s award should cover.
Another important advantage of arbitration is that in arbitration the parties can choose their arbitrator(s) having experience in the subject matter of the dispute. If the parties had gone to court, it is uncertain if the judge dealing with their case would have expertise or experience in areas/ matters of the dispute. The arbitrator’s knowledge allows for a quick, in-depth analysis of the issues, which in turn saves time and expense.
Unless parties decide otherwise, arbitration hearings are confidential and the decisions reached are generally not matters of public knowledge. On the other hand, court proceedings are generally in the public domain. The companies involved may not want the public to be aware of the details of their business dealings.
Arbitration Award is final and binding on both the parties. A party may challenge an Arbitration Award on very limited grounds. Usually, courts have very limited scope to set aside an Arbitral Award.
Finally, unlike court’s order, Arbitration Award is enforceable in 148 countries around the world, if the place of arbitration occurs within a country which is signatory to New York Convention.
source:BIAC
-
7. Are there any disadvantages in arbitration?
In arbitration, parties must ensure that all the required documents, evidences and witnesses are submitted; otherwise, their case may suffer. Secondly, an arbitration award is very difficult to set aside on appeal. This can be a serious problem for a party that is not prepared for a decision against it. Arbitration can sometimes be as expensive as court litigation. However, since the parties are in control of the arbitration process, they may design it in a way to prevent lengthy extensions and also contain costs.
source:BIAC
-
8. What rights do I have in arbitration?
Where a three-member arbitral tribunal is agreed in advance, each side has the right to nominate one arbitrator, and the two arbitrators thus nominated finally select the presiding arbitrator. Where the two arbitrators are unable to agree on a third arbitrator, the rules of the place of arbitration will specify how the presiding arbitrator is to be chosen. Usually, these three arbitrators constitute an Arbitral Tribunal and the Tribunal jointly conducts hearing (usually with lawyers’ assistance), examines witnesses and evidences and render arbitration award. Parties may also agree to conduct arbitration by a sole arbitrator instead of three; the parties have to agree on the selection of the single arbitrator. Any party mat challenge the nomination of an arbitration by another party, on specific grounds.
source:BIAC
-
9. How do I choose an Arbitrator?
Where the number of arbitrator is one, both parties must agree on the single arbitrator. Where the number of arbitrators is three, each party has an opportunity to choose one arbitrator. In choosing an arbitrator, several considerations are relevant. For instance, what is the reputation of the person, whether he has experience/ expertise in the subject, does he command confidence, will he be available during arbitration hearing, is he likely to represent your interests effectively even though he is expected to be neutral, etc. The Chartered Institute of Arbitrators has guidelines, including on the type of admissible contacts between the party and the proposed arbitrator before his appointment. Every Arbitration Centre maintains a list or panel of arbitrators, comprising of qualified individuals, their expertise and schedule of fees. Parties may also consult such a list before selecting one as an arbitrator. However, parties are free to choose their arbitrator(s) outside such a list.
source: BIAC
-
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
-
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.
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
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
-
thanks
-
Thanks ma'am.
-
most welcome :D
-
I read it yesterday, but could not yet complete it till now, ok, let's read again... pray for me. :(
-
dear, do not take stress, quiz won't be taken ;)
-
Great initiative.