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.