BANGLADESH Law and Practice Contributed by: Sharif Bhuiyan, Dr Kamal Hossain and Associates
11. Review of an Award 11.1 Grounds for Appeal
(2021) 277 interpreted the term “public policy” in Sec - tion 43 (1)(b)(iii) of the Act as follows: “The words ”public policy” used in Section 43 (b)(iii) connote some matters, which concern public good and the public interest. “Public policy” is to be under - stood in the context of each and every case. The term “public policy” is not defined in the Arbitration Act and it is difficult to derive a straightjacket formula to define and determine the scope of public policy. […] An award would be contrary to public policy if it were “patent illegal”. Illegality must go to the root of the matter and if the illegality is of trivial nature it can - not be held that award is against the public policy. [An] award could be set aside if it is so unfair and unreasonable that it shocks the conscience of the [c] ourt. Such award is opposed to public policy and is required to be adjudged void.” Under Section 42 of the Act, an application for set - ting aside an award may be made to the court by a party within 60 days from the receipt of the award. The District Court may set aside the arbitral award in an arbitration other than an international commercial arbitration. The HCD may set aside an arbitral award made in an international commercial arbitration held in Bangladesh. 11.2 Excluding/Expanding the Scope of Appeal The Act does not contain any provision allowing par - ties to agree to exclude or expand the scope of chal - lenge against an award. 11.3 Standard of Judicial Review Under the Act, arbitral awards cannot be reviewed on the merits. The award can only be set aside on the grounds set out in Section 43 of the Act. In Bangladesh Power Development Board v M/s Arab Contractors (BD) Limited 15 MLR (2010) (HCD) 185 it was held that the award can only be set aside on the grounds set out in Section 43 of the Act. In Bangladesh Railway v Pamkaya (M) SDN BHD 2 CLR (2014) (HCD) 114, and Jalalabad Gas Transmis- sion and Distribution System Limited v Lafarge Surma Cement Limited 23 BLC (2018) (HCD) 775, the HCD
Under Section 39 of the Act, an arbitral award is final and binding. Therefore, there is no right of appeal against an arbitral award. A party wishing to challenge an arbitral award may submit an application for setting aside the award under Section 42 of the Act. Section 43 (1) of the Act lays down the following grounds for setting aside an arbitral award: • a party to the arbitration agreement was under some incapacity; • the law under which the parties entered into the arbitration agreement is not a valid law; • the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable due to some reasonable cause to present his case; • the arbitral award deals with a dispute not con - templated by or not falling within the terms of the submission to arbitration, or it contains a decision on matters beyond the scope of the submission to arbitrators, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; • the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, or, in the absence of such agreement, was not in accordance with the provi - sions of the Act; • the subject matter of the dispute is not capable of settlement by arbitration under the law for the time being in force in Bangladesh; • the arbitral award is prima facie opposed to the law for the time being in force in Bangladesh; • the arbitral award is opposed to the public policy of Bangladesh; or • the arbitral award is induced or influenced by fraud or corruption. The Appellate Division of the Supreme Court of Bang - ladesh in Saudi Arabian Airlines Corporation v Saudi Bangladesh Services Company Ltd. 73 DLR (AD)
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