Seminar Recommendation

Seminar on “Revisiting Arbitration Act for Promoting FDI in Bangladesh”

It is widely recognized that Bangladesh is on track to graduate from a least developed country (LDC) to a developing economy by 2026 and to a developed nation by 2041.  Meanwhile the countries that have graduated from the LDC category in the past have experienced an increase in FDI. The Government of Bangladesh is trying to learn from these experiences and the country already offers the most competitive and rewarding FDI regime in Asia.  As a result, the investors from countries like Japan, China, India, Australia, the Netherlands, the US, the UK, Germany, Singapore, South Korea and Norway have invested in the economic zones of Bangladesh. In the past decade, there has been a significant increase in commercial disputes in Bangladesh due to the presence of foreign companies in the country.

Effective and time-bound commercial dispute resolution mechanisms including ease of enforcing contract play crucial roles for boosting the confidence of foreign investors and creating a better investment climate. Recognizing the importance of effective commercial dispute resolution regime through reforming the Arbitration Act, 2001 to expedite the disposal of commercial disputes and increase the volume of FDI in Bangladesh, Dhaka Chamber of Commerce & Industry (DCCI) organized a seminar titled “Revisiting Arbitration Act for Promoting FDI in Bangladesh” on Sunday, April 02, 2023 at DCCI Auditorium. Barrister Md. Sameer Sattar, President, DCCI moderated the seminar after delivering his welcome remarks. Mr. Anisul Huq, MP, Hon’ble Minister, Ministry for Law, Justice and Parliamentary Affairs, Government of the People's Republic of Bangladesh graced the occasion as the chief guest. H.E. Mr. Robert Chatterton Dickson, British High Commissioner to Bangladesh was present at the seminar as the Special Guest.

The keynote was presented in the seminar by Barrister Ashraful Hadi, Advocate, Supreme Court of Bangladesh.

Summary of Recommendations

·         Need to include provisions Arbitration Act (AA) 2001 whereby interim measures shall apply irrespective of the fact that the place of arbitration is outside the country concerned.

·         The applicability of interim remedies under AA 2001 where the seat of arbitration is abroad needs to be considered.

·         The act should be amended in a way so that the Act will apply irrespective of seat of arbitration.

·         Execution of interim orders passed by arbitral tribunal under Arbitration Act 2001 should be as if the court has passed such an order.

·         Arbitral Tribunal should have the same power as the court.

·         The definition of “Court” under the AA 2001 should include High Court in respect of international commercial arbitration.

·         In Bangladesh, it is time-consuming when parties cannot agree to the appointment of the arbitrator and go to the court for appointment of the same.

·         It is suggested that the AA 2001 be amended to the effect that any application for appointment of arbitrators gets disposed of within a fixed period of time.

·         Time limit to appoint arbitrators needs to be addressed in the Act.

·         The Act is silent about any standard timeline within which an arbitration proceeding should ideally be complete, certainly subject to necessary caveats. This needs to be addressed in the AA 2001.

·         Timeframe of the arbitration proceeding needs to be defined to deter unnecessary extension of arbitration proceedings.

·         Parties and lawyers involved in an arbitration proceeding need to have access to information concerning the arbitration or dispute and in some cases, pre-action discovery may be necessary.

·         Guiding principles can be included in AA 2001 in respect of how much fees can be charged with a cap while considering the merits of the arbitration case at hand and that it should be consensual among all parties.

·         To promote and encourage parties incentivize settlement by mediation is needed.

·         Payment method of stamp duty in all aspects should be digitalized.

·         Need a central database for arbitration proceedings in  domestically and internationally.

·         Arbitral awards need urgent improvement by including provisions in AA 2001 to give the Executing Court more power and timeframe to execute arbitral awards.

·         Need to formulate an international commercial court, so that we can dispose of disputes in an expedited manner.

·         Need to establish fast track procedure to dispose of arbitral proceedings.

·         Need a provision for multi-party arbitration in AA 2001 to expedite and promote arbitration in Bangladesh.

·         To avoid misuse/abuse of arbitral proceedings there should be check and balance in entire arbitration process.

·         Need to emphasize the importance of contract enforcement and arbitration in FDI.

·         Need to encourage arbitration, particularly through alternative dispute resolution methods, by making arbitration more agile, using technology to make it faster, and balancing the need to go to court.

·         Arbitration can be international rather than territorial. 

·         Need to include provisions in the act for an emergency arbitrator.

·         There should be a provision to deal with interim orders made by an arbitral tribunal which has the same power as the court.

·         Need to create a specialized commercial court for dispute resolution, limiting fees, enforcing time constraints, and making specific provisions for fast-track dispute resolution.

·         Reforming the Arbitration Act of 2001 will help attract more FDI because foreign investors want their disputes to be resolved quickly and efficiently.

·         An Alternative Dispute Resolution mechanism saves time in obtaining justice.

·         Reforming the Arbitration Act and ensuring quick contract enforcement will improve Bangladesh's business climate.

·         Need to create a separate commercial court to handle only business disputes.

Published on: 2023-04-09