BANGLADESH Law and Practice Contributed by: Sharif Bhuiyan, Dr Kamal Hossain and Associates
The Bangladesh International Arbitration Centre (BIAC), established in 2011, is one of the local inter - national arbitration institutions. There are other local arbitration institutions established by various cham - bers of commerce. The International Chamber of Commerce (ICC), Inter - national Centre for Settlement of Investment Disputes (ICSID) and the Singapore International Arbitration Centre (SIAC) are commonly chosen by Bangladeshi parties. For ad hoc arbitrations, it is common to agree Under the Act, the HCD has jurisdiction to deal with disputes concerning international commercial arbi - tration and the District Judge’s Court (the “District Court”) has jurisdiction to deal with disputes regard - ing other arbitrations. The District Court or the HCD, as appropriate, can: • pass interim orders for preservation of the subject matter of the dispute in arbitration, among others (Section 7Ka); • refer the dispute to the arbitration tribunal and stay the court proceedings (Section 10); • appoint an arbitrator where a party, or in appropri - ate circumstances the appointed arbitrators, fail to appoint an arbitrator (Section 12); to UNCITRAL Rules. 1.4 National Courts • decide an appeal submitted by a party aggrieved by the decision of the arbitral tribunal on the chal - lenge of an arbitrator (Section 14 (4), (5)); • decide on termination of mandate of an arbitrator where the arbitrator becomes unable to perform his functions or fails to act without undue delay (Sec - tion 15 (2)); • decide the jurisdiction of the arbitral tribunal on the application of any of the parties to an arbitration agreement (Section 20); • enforce an interim order of an arbitration tribunal requiring a party to take any interim protective measures in respect of the subject matter of the dispute (Section 21 (4)); • issue summons upon any necessary person on application of the arbitral tribunal or a party to the arbitration proceedings with the approval of the arbitration tribunal (Section 33);
• set aside an arbitration award made in an arbitra- tion held in Bangladesh (Section 42); • enforce an arbitration award made in an arbitration held in Bangladesh (Section 44); • enforce an arbitration award made in a foreign arbitration (Section 45); • hear and decide appeals against an order of a district judge and additional district judge (Section 48): (a) setting aside or refusing to set aside an arbitra - tion award under Section 42; (b) refusing to enforce an arbitration award under Section 44; or (c) refusing to recognise or enforce any foreign arbitral award under Section 45; and • decide the arbitrators’ remuneration or costs (Sec - tion 50). The Act governs international arbitration in Bangla - desh and is substantially based on the UNCITRAL Model Law on International Commercial Arbitration, 1985 (the “Model Law”). However, the Act does not incorporate the 2006 amendments to the Model Law as the Act was passed in 2001 and amendments were made to the Act in 2004. The major deviations from the Model Law are summarised below. • In defining “international commercial arbitration”, the Act determines the internationality of arbitration in terms of nationality of the parties, whereas the Model Law determines internationality in terms of location of business of the parties or of the subject matter of the dispute. This means that a commer - cial dispute between two Bangladeshi nationals may not, unlike under the Model Law, fall within the scope of “international commercial arbitration”, even if their places of business are outside Bang - ladesh. 2. Governing Legislation 2.1 Governing Law • Unlike the Model Law, the Act allows the parties to an arbitration agreement to exclude or modify jurisdiction of an arbitration tribunal to determine the validity of an arbitration agreement and com - petence/jurisdiction of the tribunal in relation to a dispute referred to it.
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