BANGLADESH Law and Practice Contributed by: Sharif Bhuiyan, Dr Kamal Hossain and Associates
4.5 Arbitrator Requirements When a person is requested to accept appointment as an arbitrator, he is under an obligation to disclose any circumstances likely to give rise to justifiable doubts as to his independence or impartiality (Section 13 (1)). Additionally, every arbitrator is required to, from the time of his appointment and throughout the arbitral proceedings, disclose to the parties and all other arbi - trators without delay any circumstances giving rise to doubts about his independence unless they are already aware of such circumstances (Section 13 (2)). An arbitral tribunal may rule on a party’s challenge to the tribunal’s jurisdiction (ie, the principle of compe - tence-competence is applicable in Bangladesh). Section 17 of the Act provides that unless parties agree otherwise, the arbitral tribunal may rule on its own jurisdiction on any questions including the fol - lowing: • whether a valid arbitration agreement exists; 5. Jurisdiction 5.1 Challenges to Jurisdiction • whether the arbitral tribunal is properly constituted; • whether the arbitration agreement is against public policy; • whether the arbitration agreement is incapable of being performed; and • what matters have been submitted to arbitration in accordance with the arbitration agreement. Any objection regarding the tribunal’s jurisdiction has to be raised before or at the time of the submission of the statement of defence (Section 19 (1)). The tribunal may admit a later plea if it considers the delay justi - fied (Section 19 (2)). Where the arbitral tribunal takes a decision rejecting the plea, it can continue with the arbitral proceedings and make an arbitral award (Sec - tion 19 (3)). 5.2 Circumstances for Court Intervention Section 20 of the Act empowers the HCD to determine the jurisdiction of an arbitral tribunal. The HCD’s juris - diction to entertain an objection to the jurisdiction of
the tribunal is separate to the tribunal’s own jurisdic - tion to entertain the objection. The HCD may, on the application of any of the par - ties to the arbitration agreement, after serving notice upon all other parties, determine any question as to the jurisdiction of the arbitral tribunal (Section 20 (1)). The HCD must not consider such an application unless it is satisfied that: • the determination of the question is likely to pro - duce substantial savings in costs; • the application was submitted without any delay; and • there is good reason why the matter should be decided by the HCD (Section 20 (2)). The application must state the reasons why the matter should be decided by the HCD (Section 20 (3)). Unless the parties agreed otherwise, where an application under this provision is pending before the HCD, the arbitral tribunal can continue with the arbitration pro - ceedings and make an arbitral award (Section 20 (4)). In Bangladesh Power Development Board (BPDB) v Summit Industrial and Mercantile Corporation (Pvt) 19 BLC (2014) 284, the HCD found that the parties to the arbitration agreement excluded in writing the scope of approaching the HCD for determining the jurisdiction of the arbitral tribunal. The HCD accordingly refrained from deciding jurisdiction of the arbitral tribunal. 5.3 Timing of Challenge Section 20 of the Act does not set out a specific time - frame within which a party must go to the HCD to challenge the jurisdiction of the arbitral tribunal. How - ever, the application must be submitted without any delay. A party can usually go to court to challenge the jurisdiction of the arbitral tribunal at any time before
submitting the statement of defence. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility
The Act does not contain any express provision on the standard of judicial review (eg, deferential or de novo) for questions of admissibility and jurisdiction.
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