BANGLADESH Law and Practice Contributed by: Sharif Bhuiyan, Dr Kamal Hossain and Associates
Section 12 (1) of the Act allows the parties to agree on a procedure for appointing the arbitrator or arbitrators. Parties themselves may agree on the qualifications, nationality and other requirements of the arbitrators. 4.2 Default Procedures If the parties’ chosen method for selecting arbitrators fails, there is a default procedure in Section 12 (7) of the Act. Where, under an appointment procedure agreed upon by the parties: • a party fails to act as required under such proce - dure; • the parties, or the arbitrators, fail to reach an agreement under the same procedure; or • a person or any third party fails to perform any function assigned to him under that procedure, unless the agreement on the appointment procedure provides other means to take the necessary measure for securing the appointment, upon an application of a party, the HCD in case of international commercial arbitration, and the relevant District Court in other cases, can appoint the arbitrator or the chairman of the tribunal. 4.3 Court Intervention Under Section 12 (1) of the Act, the parties are free to agree on a procedure for appointing the arbitrator or arbitrators. In the absence of such an agreement: • in an arbitration tribunal with a sole arbitrator, if the parties fail to agree on the arbitrator within 30 days from receipt of a request made by one party, upon an application of a party, the appointment can be made by the relevant District Court in case of an arbitration other than an international commercial arbitration (Section 12 (3)(a)(i)), and by the HCD in case of international commercial arbitration (Sec - tion 12 (3)(a)(ii)); or • in an arbitration with three arbitrators, if a party fails to appoint an arbitrator within 30 days of the receipt of a request to do so from the other party or if the party-appointed arbitrators fail to agree on the third arbitrator within 30 days of their appoint - ment, upon an application of a party, the appoint -
ment can be made by the HCD in case of interna - tional commercial arbitration (Section 12 (4)) and by the District Court in other cases. 4.4 Challenge and Removal of Arbitrators Section 13 of the Act contains grounds for the chal - lenge of an arbitrator. Under Section 13 (3) of the Act, an arbitrator may only be challenged if there are circumstances giving rise to justifiable doubts as to his impartiality or independence, or if he does not possess the qualifications agreed to by the parties. According to Section 13 (4) of the Act, a party may challenge an arbitrator appointed by him, or to whose appointment he has consented, only for reasons of which the party becomes aware after the appointment has been made. Section 14 sets out the procedure for challenging an arbitrator. The parties are free to agree on a pro - cedure for challenging an arbitrator (Section 14 (1)). Where there is no agreement as to the procedure for challenging an arbitrator, a party who intends to chal - lenge an arbitrator is required to, within 30 days after becoming aware of the circumstances referred to in Section 13 (3), send a written statement stating the reasons for the challenge to the arbitral tribunal (Sec - tion 14 (2)). Section 14 (3) provides that unless the arbitrator challenged under Section 14 (2) withdraws from his office or the other party agrees or, in case of multiple parties, the other parties agree, to the chal - lenge, the arbitral tribunal will decide on the challenge within 30 days from the date of filing the written state - ment referred to in Section 14 (2). Any party aggrieved by the decision of the tribunal under the procedure above, may file an appeal to the HCD within 30 days from the date of the decision (Section 14 (4)). The HCD is required to decide on the appeal within 90 days from the date on which the appeal is filed (Section 14 (5)). If a challenge under any procedure agreed upon by the parties or the proce - dure set out in Section 14 (3) or the appeal preferred under Section 16 (4) of the Act is not successful, the arbitral tribunal will continue the arbitral proceedings and make an award (Section 16 (6)).
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