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Arbitration as an effective method of ADR

Md. Nasir Shikder
THE notion of arbitration as a means of resolving high scaled commercial disputes outside of the court has developed in Bangladesh in the recent past, i Arbitration in Bangladesh either- ad hoc or ® institutional or fast tract one is being governed by the section 89B of the Code of Civil Procedure and Arbitration Act, 2001 which is based on UNITRAL model law. The Act of 2001 will apply to all arbitrations in the country except those which may not be submitted to arbitration by virtue of another law. The 2001 Act is the replacement of the earlier one of 1940.
Arbitration as a sister concern of alternative dispute resolution (ADR) is a method for settlement of diverging disputes outside of courts, by one more impartial and independent arbitrator(s), which the parties have agreed to by means of arbitration agreement. The terminology arbitration is defined by Roomly, MR in the reputed case of Collins v Collins, 28 LJ Ch 186(1858) as a reference to the decision of one or more persons either with or without an umpire of a particular matter in difference between the parties. The realisation of Lord Woolf, MR in the last decade of 20th century, with two evils of civil justice- delay and cost, echo the need of ADR including arbitration not only in the United Kingdom but also across the globe. Moreover, confidentiality, flexibility and global enforceability of arbitral award, have added an edge for uplifting the popularity ofthe concept.
The number of cases pending in both the higher and subordinate judiciary has shown the gruesome judicial gridlock. Recent seminar presentation document of Bangladesh International Arbitration Centre (BIAC) revealed a horrifying scale pendency of civil suits in the country. According to the document over 77% civil cases in the Appellate Division and 27% civil cases in the High Court Division is pending. Also, above 66% civil suits is pending in the districts and divisional level. However, the exact number of commercial suits is not estimated in the document but the document perceives partial solution of these through ADR. Terming the backlog of suits as a mammoth obstacle to ensure justice the incumbent Chief Justice has recently also pointed the role of ADR in reducing pendency of suits and establishing peace and stability in society.
The procedures and tactics as apply in the arbitration proceeding are completely different from the complex legal procedure of the court. The arbitral tribunal has the sole jurisdiction to try matter at its own accord without availing the normal course of dispute mechanism process. But in doing so the tribunal must not violate prevailing norms of law except the relaxation ensured by law. For example, the usual rules of evidence and procedure may be disregarded if the Arbitral Tribunal wants (sec-27 ofthe Arbitration Act, 2001).
An arbitral award made by an arbitral tribunal pursuant to an arbitration agreement shall be final and binding both on the parties and on any person claiming through or under them and such award shall be enforceable under the Code of Civil Procedure in the same manner if it were a decree of a court (Sec-39 & 44 of the Arbitration Act, 2001). Section 45 of the Arbitration Act, 2001 also recognise and provide the mechanism of enforcing foreign arbitral award by the national court. Besides, as Bangladesh is a party to New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958, foreign awards can be enforced in 149 member countries under the Convention.
As no procedure of dispute resolution including the judicial one is out of imprecision. So, arbitration has its own lacunae because I arbitrators are also human being and may lack in impartiality and integrity during the initiation and completion of arbitration. Expense of arbitration proceeding in Bangladesh is comparatively higher than the court proceeding. Undeniably there is an extra cost in respect of the fees of the arbitral tribunal. Another difficulty in arbitral proceeding arises if challenges are made to the arbitration agreement or to an arbitrator.
Since arbitration is of paramount popularity around the world as to resolution of commercial disputes our country should not lag behind in using and popularising it. Its popularity can expedite easy access to justice and also can attract foreign investment apart from image building in outside world.
The academic syllabi and curricula for ADR, particularly of arbitration are not comprehensive in most of public and private universities. So, Bar Council as a regulatory body of legal education in cooperation with University Grants Commission (UGC) and Ministry of Education can direct the university authorities to transform the syllabus and curricula for spread of knowledge on the issue.
There are provisions of arbitration in different laws including Artha Rin Adalat Ain 2003, Bangladesh Energy Regulatory Commission Act 2003, Bangladesh Labour Act 2006, Real Estate Development and Management Act 2010 etc.
Truly speaking, the practice of arbitration is monopolized by some elite lawyers and retired judges all around the world. The same practice by some leading class lawyers and retired Supreme Court judges including former Chief Justices is also visible in Bangladesh to a bigger extent because of the preference of the contacting parties.
The success of resolving dispute outside the court is rested upon the people's participation in the various modes of ADR facilitated by the government, judiciary and the lawyers' community as a whole. To encourage people to avail the fruits of ADR especially of arbitration is now the demand of time now and in the days ahead.
THE WRITER IS A LECTURER OF LAW AT SOUTHEAST UNIVERSITY, DHAKA.