Arbitration
1. Define Arbitration and Arbitration agreement
2. Describe the power of an Arbitrator
and Umpire
3. When and award can be modified or
corrected?
4. Award
5. Essentials of an Award
6.
When can court set aside and Award?
7. Define Arbitration.
8. What is the effect of Arbitration?
9. What matters cannot be referred to
Arbitration?
10. State the modes of submission of
Arbitrator?
11. Difference between role of an
Arbitrator and Umpire.
12. Powers of an Arbitrator and
Umpire.
13. What is Arbitration? What is the
composition of an arbitral tribunal under the Arbitration Act-2001?
14. What do understand about
Arbitration?
15. Effect of Arbitration.
16. What are the components of an
award under the Arbitration Act – 2001?
17. Appointment of an Arbitrator under
the Arbitration Act -2001.
Arbitration
Arbitration is settlement of a dispute
by the decision not of a regular and ordinary court of law but of one or more
persons who are called arbitrators, whose decision the parties agree to accept
as binding whether they agree to the decision or not.
The person appointed to adjudicate upon the difference is called Arbitrator. Where two arbitrators are appointed and the submission provides that in the event of their disagreement, the matter in dispute shall be referred to the decision of a third person; such third person is called an Umpire.
Modes of Submission
A reference or submission to arbitration may be made in either of following three ways:
(i)
By agreement between the parties
without the intervention of the court: or,
(ii)
through the intervention of the Court
invoked by a joint petition of both the parties; or
(iii)
By the operation of law.
Who can submit to Arbitration?
Generally speaking, any person who can enter into a contract can submit to arbitration as long as he is interested in the subject-matter.
An agent duly authorized may enter
into a submissive agreement and bind his principal.
A partner in a trading firm cannot
submit to arbitration without the authority of all other partners.
Infants cannot submit to arbitration
so as to be bound by the award. The guardian of the lunatic may consent of
behalf of a lunatic to be submission of arbitration.
Attorneys and counsels can refer the
case of their clients to arbitration with the consent of their clients.
Section 11 of the Arbitration Act,
2001, provides that:
1)
Subject to the provisions of
sub-section (3), the parties shall the determination of a number of
arbitrators.
2)
The Arbitration Tribunal shall consist
of three arbitrators failing the determination of a number referred to in
sub-section (1)
3)
The appointed arbitrators shall
jointly appoint an additional arbitrator who shall act as a Chairman of the
arbitration tribunal, unless otherwise agreed by the parties, where they
appoint an even number of arbitrators.
Arbitrator cannot be removed except
with the permission of the Court where the parties to the reference had
reserved the rights of revoking the authority of the arbitrators. On the
application of any party to a reference, the Court may remove an arbitrator or
an umpire who fails to use all reasonable dispatch in entering on and
proceeding with the reference and making an award or who has misconduct himself
or the proceedings.
Where the authority of an arbitrator
or arbitrators or an umpire is revoked by leave of the Court, or where the
Court removes an umpire or a sole arbitrator or all the arbitrators, the Court
may, on the application of any party to the arbitration agreement, either:
(a)
Appoint a person to act as sole
arbitrator in the place of the person or persons so displaced; or
(b)
Order that the arbitration agreement
shall cease to have effect with respect to the difference referred.
Powers and duties of Arbitration and Umpires
The powers and duties of the
arbitrators or umpires depend mainly on the terms of the
submission under which they are appointed. Subject to such terms, the
arbitrators and umpires as laid down in Section 17 of the Act, have power to:
(a) Administer oath or the parties and
witness appearing;
(b) State a special case for the opinion
of the Court on any question of law arising in course of the arbitration
proceeding to the Court for the latter’s opinion thereon;
(c) Administer to any party to the
arbitration such questions as may, in the opinion of the arbitrator or the
umpire, be necessary;
(d) Make an award, which may be made
conditional or in the alternative;
(e) Correct in an award any clerical error
arising from any accidental slip or omission.
Duties
The first and foremost duty of an
arbitrator is to act with impartiality. He should have personal interest in the
matter in dispute. But if he happens to be an interested party of which the
parties had notice at the time of appointment, the submission would be good. He
should also see that he accepts no hospitality from any of the parties to the
reference. If it is proved to the satisfaction of the Court that
the effects of his accepting hospitality, was to bias his mind in favor of the
parties offering such hospitality, the Court will interfere to set aside the
award.
It
is also the duty of an arbitrator to consult the convenience of the parties as
far as possible. To that end, if the parties desire to be represented by a
legal adviser, the arbitrator must permit them to do so and must also and
adjourn the proceedings to afford such opportunity to both the parties without
distinction.
The
arbitrator has also to see that all the proceedings to on in the presence of
the parties or their legal representatives, except in case where he is
justified in acting expert after due notice.
The Award
The
award is the written decision of the arbitrator or the umpire.
Section 38 of the Arbitration Act lies
down as follows:
1. When the arbitrators or the umpire
have made their award, they shall sign it and give notice in writing to the
parties of the making and signing thereof and of the amount of fees and charges
payable in respect of their arbitration and award.
2. The arbitrator must also file the award or a signed copy of it to the Court, at the request of any party to the arbitration or at the instance of the Court, together with all the depositions and documents which may have been taken or proved before them, upon the payment of all fees and charges due in respect of the arbitration and award and of the costs and charges of filing the award.
Application for setting aside Arbitral Award
Under Section 42 of the Act:
1) The court may set aside any arbitral
award under this Act other than an award made in an international commercial arbitration
on the application of a party within sixty days from the receipt of the award.
2) The High Court Division may set aside
any arbitral award made in an international commercial arbitration held in
Bangladesh on the application of a party within sixty days from the receipt of
the award.
Enforcement of Arbitral Award
Section 44 provides that where the
time for making an application to set aside the arbitral award under section 42
has expired, or such application having been made, it has been refused, the
award shall be enforced under the Code of Civil Procedure, in the same manner
as if it were a decree of the Court.
Explanation:
The expression ‘Court’, in this section means the Court within the local limits
of whose jurisdiction the arbitral award has been finally made and signed.
Effect
of submission or reference to arbitral
Submission or reference to arbitration
puts a prima facie bar to the
institution of a suit in a Court of law by any party agreeing to the
arbitration relating to any of the disputes that have been reference to
arbitration.
If a party
to a submission or reference institutes any such proceeding against the other
party, the latter can Conditions staying.
Court
proceedings, apply to the Court, before whom the proceedings are pending, to
stay the proceedings and the Court will grant an order staying such suit or
proceedings, provided the following conditions are fulfilled:
1. Before an order can be made for
staying the suit, the Court must be satisfied that the suit has been instituted
in respect of a matter agreed to be referred to arbitration. If however, the
suit relates to matters which are partly within the submission and partly not
covered by the submission, it depends on the direction of the Court to grant a
stay order or not.
2. That the applicant was and is still
ready and willing to do all things necessary for the proper conduct of the
arbitration.
3. That the party no sufficient reason
why the matter should not be referred in accordance with the arbitration
agreement.
4. That the party instituting the suit
was not induced to enter into the arbitration agreement by fraud.
5. That the party asking for the stay
order has not filed a written statement by way of defense in the suit sought to
be stayed or taken any other steps in the proceeding.
If the Court is satisfied that the matter should be decided by arbitration, it stays the suit or proceedings. It does not dismiss the suit, for, in case the award is remitted or set aside; they stayed suit can be heard without the necessity of instituting it all over again.
Arbitration:
Sec -2(m)
“Arbitration”
means any arbitration whether or not administered by permanent Institution.
“Arbitration
agreement” means an agreement by the parties to submit to Arbitration all or certain
disputes which have arisen or which may arise between Them in respect of a
defined legal relationship, whether contractual or not.
Arbitration
tribunal: Sec-2(o)
“Arbitration tribunal” means a sole
Arbitrator or a panel of Arbitrator.
“Arbitral
award” means a decision by the arbitral tribunal on the issue in Dispute.
“Foreign
arbitral award” means an award which is made in pursuance of an Arbitration
agreement in the territory of any state other than Bangladesh but it does not
include an award made in the territory of a specified state.
International Commercial Arbitration: Sec-2(C)
“International Commercial Arbitration” means
an Arbitration relating to disputes arising out of legal ‘relationships,
whether contractual or not, considered as commercial under the law in force in
Bangladesh and where at least one of the Parties is —
(ii) A body corporate which is incorporated in any
country other than Bangladesh; or
(iii)
A company or an association or a body of individuals whose central management
and control is exercised in any country other than Bangladesh, or
(iv) The Government of a foreign
country;
Form of arbitration agreement: (Section -9)
(1) An arbitration agreement may be in the form of art arbitration clause in a contract or in the form of a separate agreement.
(2)
An arbitration agreement shall be in writing and an arbitration agreement shall
be deemed to be in writing f 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 defiance in which the existence of the
agreement is alleged by one party and not denied by the other.
Explanation-
The reference in a contract is a document containing an arbitration clause constitutes
an arbitration agreement f the contract is in writing and the reference is such
as to make that arbitration clause part of the contract.
(2)
A person of any nationality may be an arbitrator, unless otherwise agreed by
the
Parties.
(3)
Failing any agreement referred to in sub-section (1).
(a)
In an arbitration with a sole arbitrator, if the parties fail to agree on the arbitration
within thirty days from receipt of a request by one party from the other party
to so agree the appointment shall be made upon request of a party-
(i)
By the District Judge in case of arbitration other than international
commercial arbitration, and
(ii)
in case of international commercial arbitration with three arbitrators, each
party shall appoint one arbitrator, and the two appointed arbitrators shall
appoint the third arbitrator who shall be Chairman of the arbitral tribunal.
(1) The mandate of an arbitrator shall terminate.-
(a)
He withdraws himself from office:
(b)
He dies;
(c)
All the parties agree on the termination of his mandate; or
(d)
He is unable to perform his functions of his office or for other reasons fails
to act without undue delay and withdraws from his office or the parties agree
on the termination of his mandate.
(2)
If arty arbitrator has incurred disqualifications referred to in clause (d) of
subsection
(1)
fails to withdraw himself from his office and all the parties fail to Arbitration
Act, 2001 Page 9
Agree
on his termination, then on the application of any party within the prescribed
period by rules —
(a)
The District Judge, in case of other arbitrations excepting international commercial
arbitration;
(b)
The Chief Justice or a Judge of the Supreme Court designated by the Chief
Justice in case of international commercial arbitration may terminate the said
arbitrator
(3)
Where the parties are agreed upon, the termination shall be enforceable by the person
agreed by the parties,
(4)
If an arbitrator withdraws himself from his office or where all the parties
agree on the termination of the mandate of an arbitrator under the
circumstances as referred to in clause(d) of sub-section (1), it shall not
imply acceptance of the validity on any ground referred to in this clause or in
sub section (3) of action
Explanation
In
this section “District Judge” means that District Judge within whose local Jurisdiction
the concerned arbitration agreement has been entered into.
Jurisdiction of Arbitration Tribunals:
(Section – 17)
Competence of arbitration tribunal to rule on its own jurisdiction.- Unless otherwise agreed by the parties, the arbitral tribunal may rule on its own jurisdiction on any questions including the following issues, namely -
(a)
Whether there is existence of a valid arbitration agreement.
(b)
Whether the Arbitral Tribunal is properly constituted;
(c)
Whether the arbitration agreement is against the public policy;
(d)
Whether the arbitration agreement is incapable of being performed; and,
(e)
Whether the matters have been submitted to arbitration in accordance with the Arbitration
agreement.
General Responsibilities of the arbitral tribunal: (Section – 23)
(1) The arbitral tribunal shall deal with any of the dispute submitted to it fairly and impartially and for this purpose –
(a)
Each party shall be given reasonable opportunity to present his case orally or
in writing or both, and
(b)
Each party shall be given reasonable opportunity to examine all the documents
and other relevant materials filed by other
party or any other person concerned before the tribunal,
(2)
The arbitral tribunal shall deal with a dispute submitted to it as quickly as possible.
(3)
The arbitral tribunal in conducting proceedings shall act fairly and
impartially in deciding procedure and evidence and in exercising other powers
conferred on it.
Place of arbitration: (Section-26)
(1) The parties shall be free to agree
on the place of arbitration.
(2) Failing such agreement referred to
in sub-section (1), the place of arbitration shall be determined by the
arbitral tribunal having regard to the circumstances of the case, including the
convenience of the parties.
(3)
Notwithstanding anything contained in sub-section (1), or sub-section (2), the arbitral
tribunal may, unless otherwise agreed by the parties, meet at any place it considers
appropriate for consultation among its members, for hearing witnesses, experts
or the parties, or for inspection of documents, goods or other property.
Commencement of arbitral proceedings: (Section -27)
Unless otherwise agreed by the parties, the proceedings shall be deemed to have commenced if -
(a)
any dispute arises where the concerned arbitration agreement applies; and
(b)
Any party to the agreement -
(i)
Has received from another party to the agreement a notice requiring that party
to refer, or to concur in the reference of the Dispute to arbitration; or
(ii)
Has received from another party to the agreement a notice requiring that party
to appoint an arbitral tribunal or to join or concur in, or approve the
appointment of, an arbitral tribunal in relation to the dispute.
Form and contents of arbitral award (Section-38)
(1)
An arbitral award shall be in writing and shall be signed by the arbitrator or
arbitrators.
(2)
In arbitral proceedings with more than one arbitrator, the signatures of the
majority of all the members of the arbitral tribunal shall be sufficient so
long as the reason for any omitted signature is stated.
(3)
No reasons shall have to be stated by the arbitral tribunal where the parties
have agreed that no reasons are to be given, or the award is an arbitral award
on agreed terms under section 22.
(4) The arbitral award shall state its date
and the place of arbitration as determined in accordance with section 26 and
the award shall be deemed to have been made at that place.
(5)
After the arbitral award is made, a copy signed by the arbitrator or arbitrators
shall be delivered to each party.
(6)
Unless otherwise agreed by the parties—
(a)
Where and in so far as an arbitral award is for the payment of money, the arbitral
tribunal may include in the sum for which the award is moxie Interest, at such rate
as it deems reasonable, on the whole or any part of money, for the whole or any
part of the period between the date on which the cause of action arose and the
date on which the award is made.
(b)
A sum directed to be paid by an arbitral award shall, unless the award otherwise
directs, carry interest at the rate of two percent per annum which is more than
the usual Bank rate from the date of the award to the date of payment.
Explanation—
“Bank Rate” under this sub-section means the rate of interest as
Determined
by the Bangladesh Bank from time to time,
(7)
Unless otherwise agreed by the parties -
(a)
The costs of arbitration shall be fixed by the arbitral tribunal
(b)
The arbitral tribunal shall specify
(i)
The party entitled to costs;
(ii)
The party who shall pay the costs;
(iii)
The amount of costs or method of determining that amount, and
(iv)
The manner in which the costs shall be
paid.
Explanation
Under this sub-section, ‘arbitration costs includes reasonable costs relating to the fees and expenses of the arbitrators and witnesses; legal fees and expenses, any administration fees of the institution supervising the arbitration and any other expenses incurred in connection with the arbitral proceedings and the arbitral award.
Enforcement of arbitral award: (Section – 44)
Where the time for making an application to set aside the arbitral award under section 42 has expired, or such application having been mode, has been refused, the award shall be enforced under the Code of Civil Procedure, in the same manner as f it were a decree of the Court.
Explanation.-
The
expression “Court” in this section means the Court within the local
Limits of whose jurisdiction the
arbitral award has been finally made and signed.
Jurisdiction: (Section – 53)
Notwithstanding anything contained elsewhere in this Act, or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Act has been made in a Court-
(a) that court alone shall have
jurisdiction over the arbitral proceedings; and (b) all subsequent applications
arising out of that agreement and the arbitral proceedings shall be made in
that court and in no other court.
Limitation: (Section -55)
(1)
Subject to the provisions of this Act, the Limitation Act, shall apply to arbitrations
under this Act as they apply to proceedings in Court.
(2)
For the purposes of this section and the Limitation Act, arbitration shall be deemed
to have commenced on the date referred to in section 27.
(3)
Where an arbitration agreement to submit future disputes to arbitration
provided that any claim to which the agreement applies shall be barred unless
some step to commence arbitral proceedings is taken within a time fixed by the
agreement, the court may, on such terms, any, as the interest of justice, may require,
extend the time for such period as it thinks proper.
(4) Where the court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the court shall be excluded in computing the time prescribed by the Limitation Act.
#Collected
কোন মন্তব্য নেই:
একটি মন্তব্য পোস্ট করুন