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Arbitral Proceedings : Bangladesh Council for Arbitration (2001 Act)

  • Bangladesh Council for Arbitration (BCA) of the Federation of Bangladesh Chambers of Commerce and Industry (FBCCI) (2001 Act) 

      

    The Rules may be called the "Rules of Arbitration of the Bangladesh Council of Arbitration" framed under the auspices of FBCCI. These Rules shall apply where any agreement, submission or reference, in the form of an arbitration clause in a contract or in the form of a separate agreement, provides in writing for arbitration under these Rules of Bangladesh Council of Arbitration (BCA) the parties shall be taken to have agreed in writing that the arbitration shall be conducted in accordance with these Rules or such amended Rules as the BCA may adopt from time to time. 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. The BCA Rules include the Appendixes and any amendment made therein from time to time.   

     
     
    Bangladesh Council for ArbitrationArbitral Proceedings
     

    Rule 11   FAST TRACK ARBITRATION 

    11.1         The parties may opt for Fast Track Arbitration and request the Arbitral Tribunal, before the commencement of the arbitration proceedings or during the course of the arbitration, to complete the proceedings in a fixed time frame of 3 to 6 months or any other time agreed between the parties, according to the Fast Track Arbitration procedure, as under:   

    a.     The Arbitral Tribunal will be authorised to decide the dispute on the written pleadings, documents and written submissions filed by the parties without any oral hearings.   

    b.     The Arbitral Tribunal shall have power to call for any further information/clarification from the parties in addition to the pleading and documents filed by them.   

    c.     An oral hearing may be held if both the parties make a joint Request or if the arbitration Tribunal considers an oral hearing necessary in any particular case.  

    d.     If an oral hearing is held, the Arbitral Tribunal may dispense with any technical formalities and adopt such procedure as it deems appropriate and necessary for economic and expeditious disposal of the case.   

    Rule 12  PLACE OF ARBITRATION  

    12.1         The place or venue of arbitration shall be Bangladesh. The Arbitration proceedings shall be held at such place or places in Bangladesh as the Council may determine having regard to the convenience of the Arbitrators and the parties. In a case in which one or both the parties are from overseas, the arbitration proceedings may also be held at any place outside Bangladesh at the discretion of the Council. 

      

    Rule 13  SUBMISSION OF DOCUMENTS  

    13.1     Statement of claim and defence statement 

    13.1.1  The Claimant must file its statement of claim with the Request containing all relevant information supported by documents, including the names, addresses of the parties to the arbitration;a description of the nature and circumstances of the dispute giving rise to the claim; a statement of the relief sought, including, to the extent possible, an indication of any amount claimed; and any comments as to the applicable rule of law etc. of the arbitration.  

    13.1.2  Within the stipulated time under Rule 7.1 the Respondent shall file its statement of defence to the Registrar as part of the Response containing all relevant information supported by the available documents including the following:  

    a.     the name and address in full;  

    b.     confirmation or denial of all or any part of the claims advanced by the Claimant in the Request;  

    c.     comments as to the nature and circumstances of the dispute giving rise to the claim;  

    d.     Response to the relief sought;  and 

    e.     any comments concerning the number of Arbitrators and their choice in light of the Claimant's proposals and in accordance with the provisions of these Rules, and any nomination of an Arbitrator required thereby.   

    13.2     Counterclaim and reply to counterclaim 

    13.2.1  The Respondent may make a counterclaim against the Claimant provided the counterclaim arises under the same transaction as the original claim. He must submit the counterclaim with full details supported by the available documents and information within the period laid down for the submission of the Response under Rule 7.1 and the Claimant may within twenty-one days of the notification of the counterclaim or within the time extended by the Registrar submit a statement in reply to the counterclaim. The Arbitral Tribunal appointed to adjudicate upon the original claim shall also adjudicate upon the counterclaim. The Registrar shall send a copy of the reply to the counterclaim and all appended documents, if any, to the Respondent for information immediately.   

    13.3     Amendment of claims, etc. 

    13.3.1  After the commencement of the arbitration proceedings, no party shall make new claim or counterclaim which fall outside the limits of the respective claim, defence statement or counterclaim unless it has been authorised to do so by the Arbitral Tribunal, which shall consider the nature of such new claim or counterclaim, the stage of the arbitration and other relevant circumstances. Application for amendments of the claim, defence statement, counterclaim or reply submitted to the Arbitral Tribunal must be formulated in writing by the party so desiring. However, minor amendment other than adding a new claim or counterclaim may be allowed at the sole discretion of the Tribunal. When the additional claim or counterclaim is higher than the original claim or counterclaim respectively the administrative fees and Arbitrator's fee (for each Arbitrator) shall be accordingly revised. The party making such additional claim/counterclaim shall be responsible to deposit, if required by the Registrar, additional fees and expenses payable under the Schedule of Costs.   

    13.4     Submission of other documents 

    13.4.1  The parties may submit with their statements all documents, relevant samples or exhibits they consider to be relevant and which have not previously been submitted by any party, or may add a reference to the documents or other evidence they will submit in future. Arbitral Tribunal may order any party to produce to the Tribunal, and to the other parties for inspection, or supply copies of, any documents or classes of documents in their possession, custody or power which the Arbitral Tribunal determines to be relevant.   

    13.5     Communication of documents 

    13.5.1  All statements, documents or other information supplied to, or applications made to the Tribunal by one party shall be communicated to the other party, and any expert report or evidentiary document on which the Tribunal may rely in making its decision shall be communicated to the parties as soon as practicable if not immediately.   

    13.6     Return of documents 

    13.6.1  Unless required to be filed in a Court of law, the Council shall have full discretion to retain or to return all books, documents or papers produced before the Tribunal, however, the Arbitral Tribunal may direct the Registrar at any time that the books, documents or papers produced before it may be returned to the parties on such terms and conditions as the Arbitral Tribunal may impose.   

    Rule 14  POWER OF TRIBUNAL  

    14.1     Conservatory and interim measures 

    14.1.1  On an application of any party the Arbitral Tribunal shall have the power to make an order of any interim or conservatory measure it deems appropriate. The Arbitral Tribunal may make the granting of any such measure subject to appropriate security being furnished by the requesting party. Any such measure shall take the form of an order, giving reasons, or of an Award, as the Arbitral Tribunal considers appropriate. No order under this section shall be passed without giving notice to the other parties provided that the Arbitral Tribunal may, where it appears that the object of taking interim measure would be defeated by the delay, dispense with such notice.  

    14.2     Majority power to continue proceedings 

    14.2.1   If an Arbitrator on a three-member Arbitral Tribunal refuses or persistently fails to participate in its deliberations, the two other Arbitrators shall have the power, upon their written notice of such refusal or failure to the Council, the parties and the third Arbitrator, to proceed with the arbitration (including the making of any decision, ruling or Award), notwithstanding the absence of the third Arbitrator. In determining whether to continue the arbitration, the two other Arbitrators shall take into account the stage of the arbitration, any explanation made by the third Arbitrator for his non-participation and such other matters as they consider appropriate in the circumstances of the case. The reasons for such determination shall be stated in any Award, order or other decision made by the two Arbitrators without the participation of the third Arbitrator.   

    14.2.2   In the event that the two other Arbitrators determine at any time not to continue the arbitration without the participation of the third Arbitrator missing from their deliberations, the two Arbitrators shall notify in writing the parties, through the Registrar, of such determination; and in that event, the two Arbitrators or any party may refer the matter to the Registrar for the revocation of that third Arbitrator's appointment and his replacement under Rule 9.8.  

    14.3     Additional powers of Arbitral Tribunal 

    14.3.1  The Arbitral Tribunal shall have the power, on the application of any party or of its own motion, but in either case only after giving the parties a reasonable opportunity to state their views:   

    a.     to extend or reduce any time-limit provided by the Arbitration Agreement or these Rules for the conduct of the arbitration or by the Arbitral Tribunal's own orders;  

    b.     to conduct such enquiries as may appear to the Arbitral Tribunal to be necessary or expedient, including whether and to what extent the Arbitral Tribunal should itself take the initiative in identifying the issues and ascertaining the relevant facts and the law(s) or rule of law applicable to the arbitration, the merits of the parties' dispute and the Arbitration Agreement;  

    c.     to order any party to make any property, site or thing under its control and relating to the subject matter of the arbitration available for inspection by the Arbitral Tribunal, any other party, its expert or any expert to the Arbitral Tribunal;  

    d.     to allow, only upon the application of a party, one or more third persons to be joined in the arbitration as a party provided any such third person and the applicant party have consented thereto in writing, and thereafter to make a single final Award, or separate Awards, in respect of all parties so implicated in the arbitration;   

    Rule 15   LANGUAGE OF ARBITRATION  

    15.1     The language of the arbitration proceedings shall generally be in English unless otherwise agreed by the parties. If any documents filed by a party are in a language other than English, the party filling such documents shall simultaneously furnish an English translation of the documents, unless exempted by the Tribunal e.g. in a domestic commercial arbitration documents in Bengali may also be accepted by the Tribunal along with the documents in English. The Registrar may make arrangements for the service of an interpreter at the request of one or more of the parties and costs thereof shall form part of the costs of the arbitration.  

    Rule 16  WAIVER     

    16.1     Any party who proceeds with the arbitration with the knowledge that any provision or requirement of these Rules has not been complied with and who fails to state his objection thereto in writing, shall be deemed to have waived his right to object. The parties can also mutually agree to abandon certain provisions of these Rules provided the Arbitral Tribunal do not think the same would frustrate the process of arbitration.  

    Rule 17  PROCEDURAL TIMETABLE  

    17.1     The arbitration session will go on as far as possible on a day-to-day basis in the convenient office hours once the hearing begins after completion of all the formalities. The Arbitral Tribunal shall not ordinarily adjourn a hearing at the request of any party, except where the circumstances are beyond the control of the party and the Arbitral Tribunal is satisfied that reasons and circumstances for the adjournment are justified. While granting an adjournment, the Arbitral Tribunal may make such orders regarding payment of costs by one or both of the parties, as it deems fit and reasonable.  

    Rule 18  CONDUCT OF PROCEEDINGS  

    18.1     The Arbitral Tribunal shall deal with any of the dispute submitted to it fairly and impartially and for this purpose each party shall be given reasonable opportunity to present its case orally, or in writing; or both, and each party shall be given reasonable opportunity to examine all the documents and other relevant materials file by other party or any other person concerned before the Tribunal.   

    18.2     The Tribunal shall deal with a dispute submitted to it as quick as possible by avoiding unnecessary delay or expense. The Arbitral Tribunal shall adopt procedures suitable to the circumstances of the arbitration; act fairly in deciding evidence and in exercising other powers conferred on it.  

    18.3     The Arbitral Tribunal may proceed with conducting the arbitration notwithstanding any failure by a party to comply with any of the directions of the Arbitral Tribunal and may also proceed with the arbitral proceedings in the absence of any or both the parties who fail or neglect to attend at the time and place appointed by the Arbitral Tribunal, in spite of due notice.  

    18.4     The Arbitral Tribunal shall have the widest discretion to discharge its duties allowed under these Rules and such other law or rule of law as the Arbitral Tribunal may determine to be applicable; and at all times the parties shall do everything necessary for the fair, efficient and expeditious conduct of the arbitration.   

    Rule 19  HEARINGS  

    19.1     When a hearing is to be held, the Arbitral Tribunal, giving reasonable notice, fix the date, time and physical place of any meetings and hearings in the arbitration, and shall summon the parties to appear before it on the day and at the place fixed by it. If any of the parties, although duly summoned, fails to appear without valid excuse, the Arbitral Tribunal shall have the power to proceed with the hearing in his absence. The Arbitral Tribunal shall be in complete charge of the hearings, at which all the parties shall be entitled to be present. Save with the approval of the Arbitral Tribunal, persons not involved in the proceedings shall not be admitted. The Arbitral Tribunal shall have the fullest authority to establish time-limits for meetings and hearings, or for any parts thereof.  

    19.2     Every party has the right to be heard orally before the Arbitral Tribunal on the merits of the dispute. If no such desire is expressed by any party, the Tribunal shall decide considering all the circumstances whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials only.  

    Rule 20    EVIDENCE  

    20.1     The Arbitral Tribunal shall decide whether or not to apply any strict principles of evidence (or any other rules) as to the admissibility, relevance or weight of any material tendered by a party on any matter of fact or expert opinion; and to determine the time, manner and form in which such material should be exchanged between the parties and presented to the Arbitral Tribunal.  

    20.2     The Registrar shall make necessary arrangements for a stenographic record of evidence whenever such record is required by a party. The cost of the stenographic record and all transcripts thereof, if any, shall form part of the costs of the reference.  

    Rule 21  WITNESSES 

    21.1         Before any hearing, the Arbitral Tribunal may require any party to disclose the identity of each witness that party wishes to call, as well as the subject matter of that witness's testimony, its content and its relevance to the issues in the arbitration.   

    21.2         The Arbitral Tribunal may also determine the time, manner and form in which such materials should be exchanged between the parties and presented to the Arbitral and it has a discretion to allow, refuse, or limit the appearance of witnesses (whether witness of fact or expert witness).  

    21.3         Subject to any order otherwise by the Arbitral Tribunal, the testimony of a witness may be presented by a party in written form, either as a signed statement or as a sworn affidavit. However, any party may request that a witness, on whose testimony another party seeks to rely, should attend for oral questioning at a hearing before the Arbitral Tribunal. If the Arbitral Tribunal orders that other party to produce the witness and the witness fails to attend the oral hearing without good cause, the Arbitral Tribunal may place such weight on the written testimony (or exclude the same altogether) as it considers appropriate in the circumstances of the case.  

    21.4         The Arbitral Tribunal may administer oath or affirmation to the parties or witnesses appearing and giving evidence. Any witness who gives oral evidence at a hearing before the Arbitral Tribunal may be questioned by each of the parties under the control of the Arbitral Tribunal. The Arbitral Tribunal may put questions at any stage of his evidence.  

    21.5         Any individual intending to testify to the Arbitral Tribunal on any issue of fact or expertise shall be treated as a witness under these Rules notwithstanding that the individual is a party to the arbitration or was or is an officer, employee or shareholder of any party.   

    Rule 22    APPOINTING LEGAL ADVISERS, EXPERTS ETC.  

    22.1         At a hearing, a party shall be entitled to appear by counsel, attorney, advocate or a duly authorised adviser or representative or personally. However, where the dispute is purely of a commercial nature, the parties shall have no right to be represented by lawyers except where, having regard to the nature or complexity of the dispute, the Arbitral Tribunal considers it necessary in the interest of justice that the parties should be allowed to be represented by counsel, attorney or advocate.  

    22.2         The Arbitral Tribunal may at its discretion at any time or times before making the final Award and at the expense of the parties concerned, consult any person having special knowledge relating to the particular industry, commodity, product or branch of trade concerned in the reference or any expert or qualified accountant and may also at the like expenses of the parties, consult solicitors, counsel or advocates upon any technical question of law, evidence, practice or procedure arising in the course of the arbitration. If the parties agree, the Arbitral Tribunal may, at the expense of the parties, appoint any expert, accountant, or lawyers to sit with as an assessor and take into account the advice of such assessor. The parties shall be given reasonable opportunity to comment on the report, information, opinion or advice submitted in the Tribunal by the expert, legal adviser or the assessor.  

    22.3     If a party to the Arbitral Tribunal so requests, the expert or the assessor, as the case may be, shall, after delivery of his written or oral report, participate in an oral hearing where the parties have the opportunity to put questions to him and to present expert witness in order to testify on the points at issue. The expert, or the assessor, as the case may be, shall, on the request of a party, make available to that party all documents, goods or other property in the possession of him with which he was provided in order to prepare his report.  

    Rule 23  CONSOLIDATING PROCEEDINGS AND CONCURRENT            HEARING  

    23.1     The parties shall be free to agree to the effect that any arbitration proceedings shall be consolidated with other arbitral proceedings or concurrent hearings of arbitration between the same parties shall be held on such terms as may be agreed. The Arbitral Tribunal shall have no power to consolidate the proceedings or concurrent hearing unless the same is given by the parties on agreed terms to the Tribunal.  

    23.2     Where there are two or more applications for arbitration by the Council and the issue involved in the dispute arises out of same transactions, the Registrar may, if he thinks proper to do so and with the consent of the parties, fix the hearing of the disputes to be heard jointly or refer the applications to the same Tribunal. The Awards, however, shall be given separately in each case.   

    Rule 24 CLOSE OF PROCEEDINGS  

    24.1     When it is satisfied that the parties have had a reasonable opportunity to present their cases, the Arbitral Tribunal shall declare the proceedings closed. Thereafter, no further submission or argument may be made, or evidence produced, unless requested or authorised by the Arbitral Tribunal.   

    Rule 25  TERMINATION OF PROCEEDINGS  

    25.1      The arbitral proceedings shall be terminated by the final Arbitral Award or by an order of the Arbitral Tribunal where-  

    a.the Claimant withdraws his claim and no objection of the Respondent in this regard shall be taken into account unless he has a counterclaim;  

    b.     the parties agree on the termination of the proceedings; or  

    c.     the Arbitral Tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.