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.
Rule 1 SHORT TITLE AND SCOPE
1.1 These 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.
Rule 2 DEFINITIONS
2.1 In these Rules, the following words have the following meanings:
a. "Arbitration" means proceedings conducted for resolution of dispute by a constituted Arbitral Tribunal under these Rules;
b. "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;
c. "Arbitral Award" means a decision made by the Tribunal on the issue in dispute which includes an interim, ex-parte, partial or final Award, as the case may be;
d. "Arbitral Tribunal" or Tribunal means a Tribunal constituted under these Rules consisting of an Arbitrator or Arbitrators for determining a particular dispute or difference;
e. Claimant includes one or more Claimants and Respondent includes one or more Respondents, as the case may be;
f. "Council" means the Bangladesh Council of Arbitration (BCA) with its Governing Body and Tribunal.
g. FBCCI means Federation of Bangladesh Chamber of Commerce and Industry.
h. "Fast Track Arbitration" means arbitration in accordance with Rule 11;
i. Governing Body means the Governing Body of the Council.
j. "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 (i) an individual who is a national of, or habitually resident in any country other than Bangladesh; or (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;
k. "Legal representative" means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased, and, where a party acts in a representative character, the person on whom the estate devolves on the death of the party so acting;
l. "Person" means a statutory or other organisations, company and association and includes partnership firm;
m. "Panel" means the Panel of Arbitrators maintained by the Council;
n. "Party" means a party to an arbitration including any person claiming through or under him;
o. "Registrar" means the Registrar for the time being appointed by the Governing Body and includes an Assistant Registrar and such other person as the Governing Body may nominate for carrying out the duties of the Registrar under these Rules;
p. Request means an application requesting for arbitration under Rule 6.1 along with all the relevant documents under Rule 6.3.
q. Response means a reply to the Request in accordance with Rule 7.1 along with a statement of defence and all other relevant documents.
r. "Rules" means the Rules of Arbitration of the Bangladesh Council of Arbitration (BCA) or such amended Rule(s) as the BCA may adopt from time to time;
Rule 3 REGISTRARS DUTY
3.1 The Registrar shall act on behalf of the Council and execute all decisions of the Governing Body and discharge all the functions under these Rules.
3.2 The Registrar shall receive applications for arbitration on behalf of the Council, receive payment of fees and deposits, and appoint Arbitrator as and when required. The Registrar shall also receive all communications made to the Arbitral Tribunal by the parties and communicate to them the orders and directions of the Arbitral Tribunal, keep a register of applications to the Council and of Awards made by the Arbitral Tribunal, keep such other books or memoranda and make such other records or returns as the Governing Body shall from time to time require and generally carry out the directions of the Arbitral Tribunal so constituted under these Rules and take such other steps as may be necessary to assist such Arbitral Tribunal in carrying out of its functions.
3.3 The Registrar may delegate to any officer of the Council, Chambers of Commerce or Trade Association at the premises of which the arbitration proceedings are taking place, to discharge such of the functions and administrative duties of the Registrar as are deemed proper and necessary from time to time, with reference to a particular case or cases. However, the Registrar must supervise the activities of such authorised officer and shall remain responsible for all foreseeable adverse consequences.
Rule 4 RULES APPLICABLE
4.1 Any dispute relating to any commercial matter or any other matter arising between two or more parties in Bangladesh or a party or parties in Bangladesh and a party or parties in a foreign country or between foreign parties who agree or have agreed for arbitration by the Council or under the Rules of Arbitration of the Council, shall be determined and settled in accordance with these Rules.
4.2 The Council shall also be competent to administer the conduct of arbitration in any dispute or difference relating to a commercial transaction between parties as mentioned in Rule 4.1 where they have agreed to have their dispute arbitrated under any other Rules of Arbitration or otherwise and have agreed to have such arbitration administered by the Council, wholly or in respect of some matters arising out of such arbitration.
4.3 The Council shall be competent to function as appointing authority as contemplated under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL).
4.4 Wherever the parties have provided or agreed for arbitration by the Council or for arbitration under the Rules of Arbitration of the Council, these Rules or any amendment made thereof at the time the dispute is referred to arbitration of the Council, shall apply.
4.5 Any Chamber of Commerce, trade association or any arbitral or other organisation may adopt these Rules; by making them generally available to its members or by applying them to any dispute in which any of its members may be parties or by normally conducting its arbitration under these Rules.
4.6 The decisions of the Council with respect to all administrative matters relating to the arbitration shall be conclusive and binding upon the parties and neither the Governing Body nor the Arbitral Tribunal shall be required to give any reasons.
Rule 5 INTERPRETATION OF RULES
5.1 If any dispute has been raised prior to the formation of the Arbitral Tribunal, the decision of the Governing Body on any question relating to interpretation of these Rules or any procedural matter thereunder shall be final and binding on the parties. However, once the Arbitral Tribunal is formed, notwithstanding anything contained under these Rules, any question relating to interpretation of these Rules or any procedural matter thereunder, so far it relates to the Tribunal so constituted, shall be resolved by the Arbitral Tribunal and its decision on such matter shall be final and binding on the parties.
5.2 Wherever in these Rules reference is made in masculine it shall also include feminine. Similarly all references in singular may also mean, where the context admits or requires, plural and vice versa.
Rule 6 REQUEST FOR ARBITRATION
6.1 A party wishing to have recourse to arbitration under these Rules (the Claimant) shall submit its written application for Request for Arbitration (the Request) to the Registrar which shall contain, inter alia, following information:
a. the names and full addresses of the parties to the arbitration
b. relevant particulars concerning the
i. number and nomination of Arbitrator(s)
ii. an indication of any amount claimed to the extend it is possible
iii. receipt confirming payment of the registration fees. Without which the Request shall be treated as not having been received by the Council.
6.2 The date on which the Request is received by the Registrar shall, for all purposes, be deemed to be the date of the commencement of the arbitral proceedings.
6.3 Along with the Request the Claimant shall supply to the Registrar the following documents in the number of copies specified in Rule 34.1
a. statement of claim in accordance with Rule 13.1.1.
b. written documents as contemplated in Rule 1.1 containing an arbitration agreement together with the copies of all relevant contractual documents in respect of which the dispute arises;
c. if any Court makes an order directing that an arbitration be held under these Rules the order of that Court or a duly certified copy thereof shall also accompany the application for arbitration.
6.4 In the event that the Claimant fails to comply with either of the requirements of Rule 6.3, the Registrar may fix a time limit within which the Claimant must comply, failing which the file may be closed without prejudicing the right of the Claimant to submit the same claim at a later date in another Request.
6.5 The Registrar shall notify the Claimant its acknowledgment of receipt of the Request within seven days from the date of such receipt. The Registrar shall also immediately send such notice to the Respondent along with a set of documents submitted with the Request by the Claimant and ask for its Response to the Request within the stipulated time in Rule 7.1. Copy of any other or further document(s) submitted by the Claimant subsequently must also be dispatched to the Respondent immediately.
6.6 On receipt of an application for arbitration the Registrar may, in consultation with the Chairperson of the Governing Body or in his absence in consultation with the member of the Governing Body designated by him, reject the application without giving any reason. Before deciding on the acceptability of an application for arbitration, the Registrar may ask the parties for further information and particulars of their claims. Similarly, if any information or particulars regarding the arbitration agreement furnished by Claimant with the application for arbitration are found to be incorrect or false, at any stage subsequently, the Arbitral Tribunal shall have a like power to reject the application for arbitration and forfeit the deposit, if any, made by the Claimant under these Rules.
6.7 Any party aggrieved by the decision of the Registrar, in accepting or rejecting an application for arbitration as above, may apply to the Court for suitable directions.
Rule 7 THE RESPONSE
7.1 Within 30 days from the receipt of the notice under Rule 6.5 the Respondent shall file a written reply to the Request in the form of a statement of defence in accordance with Rule 13.1.2, nominate Arbitrator where applicable; and make comments in writing, if any, as to the nomination of Arbitrator(s) or on any other relevant issue (the Response) along with the receipt confirming payment of the required fees as prescribed under these Rules.
7.2 The Respondent may apply to the Registrar for an extension of time for filing the Response, subject to payment of fees specified in the Schedule of Costs. The Registrar, in his absolute discretion, may grant an extension if any reasonable ground for such extension exists to the satisfaction of the Registrar.
7.3 The Respondent shall supply along with the Response all other relevant documents to the Council in the number of copies specified in Rule 34.1.
7.4 The Registrar shall send a copy of the Response and the documents annexed thereto to the Claimant within seven days of the receipt of the same.
7.5 The Respondent may make a counterclaim against the Claimant within the period laid down for the defence statement to the claim under Rule 7.1 provided the counterclaim arises under the same transaction as the original claim. Any counterclaim made by the Respondent shall be filed with its Response along with money receipt confirming the payment of required cost under these Rules and shall provide:
a. a description of the nature and circumstances of the dispute giving rise to the counterclaim; and
b. a statement of the relief sought, including, to the extent possible, an indication of any amount counterclaimed.
7.6 The Claimant shall file a Reply to any counterclaim within 21 days from the date of receipt of the counterclaim communicated by the Council. The Registrar may grant the Claimant an extension of time for filing the Reply, subject to payment of fees in accordance with the Schedule of Costs, if any reasonable ground for such extension exists to the satisfaction of the Registrar. The Registrar shall dispatch any such Reply to the Respondent immediately.
7.7 Failure to send a Response shall not preclude the Respondent from denying any claim or from advancing a counterclaim in the arbitration.
THE ARBITRAL TRIBUNAL
Rule 8 PANEL OF ARBITRATORS
8.1.1 A Panel of Arbitrators shall be enlisted by the Governing Body of the Council from amongst persons who are qualified and willing to serve as Arbitrators generally or in specific fields. Council, on its own motion or on recommendation of any member of the Governing Body of the Council or any member of the Executive Committee of the FBCCI or its other sister organisation, may enlist anyone as a Panel Arbitrator. Council may set the required qualification for enlistment of a Panel Arbitrator which may be changed from time to time.
8.1.2 Before enlistment by the Council, each Panel Arbitrator shall furnish to the Chairperson of the Governing Body a written résumé of his educational qualification and professional experience; he shall agree in writing on fee rates stipulated by the Council under these Rules; and he may be required to sign a declaration to the effect that he is eligible in accordance with all the eligibility criteria which may be specified by the Council from time to time.
8.1.3 A person of any nationality may be enlisted in the Panel of Arbitrators.
8.2.1 The Registrar shall prepare and maintain an up-to-date list of Panel of Arbitrators together with adequate information as to their qualifications and experience. Separate lists may also be kept and maintained of Arbitrators included in the Panel for disputes in general and for each of the fields of international trade and/or business transactions in which the Governing Body decides that the Council will offer arbitration facilities under these Rules.
8.3 Choosing an Arbitrator
8.3.1 The parties to a dispute or the Registrar, where he appoints the Arbitrator, may choose any person from the Panel with reference to any dispute. If any party appoints someone residing abroad as Arbitrator, that party will have to meet the stay and travel expenses of the person appointed as Arbitrator. The Arbitral Tribunal may, however, make an order in regard thereto in the Award. The Panel of Arbitrators shall be open to inspection by anyone with the permission of the Registrar.
8.4 Amendment of Panel
8.4.1 The Council, at any time, may add the name of any person to the list of Arbitrators in the Panel or delete any name from the Panel without giving any reason.
8.5 Special Arbitrator
8.5.1 The Chairperson of the Governing Body may include the name of any person, who would qualify under these Rules in the Panel, if it is required in any particular arbitration. The Council may decide his continuance in the Panel even after conclusion of such particular arbitration.
8.6.1 An Arbitrator who has attained the age of 75 years or more will automatically cease to be a member of the Panel of Arbitrators. A person who has been appointed as an Arbitrator in a reference before attaining the age of 75 years may continue to serve as an Arbitrator till pronouncement of the final Award in the said reference pending before the Council.
8.6.2. An Arbitrator shall also ipso facto be disqualified to serve as an Arbitrator if:
a. he is found to be of unsound mind by a court of competent jurisdiction; or
b. he is adjudged as insolvent; or
c. he is sentenced to a term of imprisonment exceeding six months for any criminal offence involving moral turpitude; or
d. by notice in writing to the Council he expresses unwillingness to serve as an Arbitrator; or
e. his name is deleted from the list of Panel by the Council under Rule 8.4.
Rule 9 CONSTITUTION OF ARBITRAL TRIBUNAL
9.1 Expedited formation
9.1.1 In exceptional urgency, any party may apply in writing to the Council for the expedited formation of the Arbitral Tribunal. The application shall set out the specific grounds for exceptional urgency in the formation of the Arbitral Tribunal accompanying all relevant documents under Rule 6.3 as well as the proof that all papers have duly been served upon all other parties to the arbitration.
9.1.2 The Registrar may, in his complete discretion, abridge or curtail any time limit or relax any requirement specified under these Rules to expedite the formation of an Arbitral Tribunal under Rule 9.1.1. The Registrar shall not be entitled to abridge or curtail any time limit or relax any requirement specified under these Rules after the formation of the Arbitral Tribunal.
9.2 Regular formation
9.2.1 The Registrar shall take necessary steps to constitute Arbitral Tribunal for the adjudication of the dispute or difference as soon as practicable once the Response is received or where no Response is received immediately after expiry of the time limit stipulated under Rule 7.1 or 7.2, the Registrar may proceed with the formation of the Arbitral Tribunal notwithstanding that the Request is incomplete or the Response is missing, late or incomplete.
9. 3 Number of Arbitrator
9.3.1 Number of Arbitrators, prima facie, shall be the specified number in the agreement. If the agreement specified an even number of Arbitrators, an additional Arbitrator shall be appointed under Rule 9.4.4 when the parties nominated their respective Arbitrators and in any other case an additional Arbitrator shall be appointed under Rule 9.5.2.
9.3.2 Where the agreement does not specify any number of Arbitrators and the claim does not exceed taka five crore, the reference shall be deemed to be to a sole Arbitrator, unless the parties to the dispute jointly submits before the Council in writing to refer the dispute to three Arbitrators within thirty days from the date of notification of Request for arbitration.
9.3.3 Where the agreement does not specified any number of Arbitrator(s) and the claim exceeds taka five crore the dispute will be heard and determined by three Arbitrators, unless the parties to the dispute jointly submits before the Council in writing to refer the dispute to a sole Arbitrator within thirty days from the date of the notification of the Request for arbitration.
9.3.4 Where three Arbitrators have to be appointed and any of the parties to the dispute fails to make the necessary deposit towards the cost and expenses of arbitration, instead of three Arbitrators, the Registrar may appoint a sole Arbitrator unless one party agrees to pay for all the parities.
9.3.5 Where disputed amount is the determining factor for constituting an Arbitral Tribunal under these Rules and the disputed amount is mentioned in a currency other than the takas, it shall be converted into takas, at the current official rate of exchange.
9.4 Nomination by parties
9.4.1 If the parties have agreed that any Arbitrator from the Panel is to be nominated by one or more of them or by any third person authorised in the arbitration agreement, that agreement shall be treated as an agreement to nominate an Arbitrator for all purposes. Such nomination may only be confirmed by the Council as Arbitrator subject to his prior compliance with Rule 9.12.
9.4.2 Where the parties or any third person authorised by the arbitration agreement nominate the Arbitrator from outside the Panel. Registrar will refer the matter to the Chairperson of the Governing Body to settle the same in accordance with the Rule 8.5.
9.4.3 Where the parties have agreed that a sole Arbitrator shall settle the dispute, the Claimant in its Request for Arbitration shall provide the name of the nominee Arbitrator and in the Response the Respondent shall acknowledge such nomination. If in the Response no disagreement with the Claimants nomination is mentioned or no Response is given on time as stipulated under Rule 7.1, acknowledgement of such nomination shall be deemed. Upon receiving name of the sole Arbitrator the Registrar shall confirm such nomination subject to Rule 9.12. If the Claimant fails to mention the name of the sole Arbitrator or the Respondent disagrees with the name provided in the Request or no confirmation can be given due to non-conformity of Rule 9.12, the Registrar shall proceed in accordance with the Rule 9.5.1 for appointment.
9.4.4 Where the parties have agreed to refer to settle the dispute to three Arbitrators, each party shall provide one name of its nominated potential Arbitrator in the Request and in the Response, respectively, for confirmation by the Council. The Registrar, in consultation with the Chairperson of the Governing Body and in his absence in consultation with the Member of the Governing Body designated by the Chairperson, shall appoint the third Arbitrator, who will act as Umpire of the Arbitral Tribunal, unless the parties have clearly demonstrated their agreement to that effect by naming the third Arbitrator on their respective Request and Response or on a joint application. Upon receiving the name of the Arbitrators the Registrar shall confirm such nominations subject to Rule 9.12. If a party fails to mention the name of its nominated potential Arbitrator or the Respondent disagrees with the name provided in the Request, the Registrar shall proceed in accordance with the Rule 9.5.2 for appointment.
9.4.5 If the Arbitration Agreement calls for nomination of Arbitrator(s) by the parties, failure to make such nomination by a party within the stipulated time shall be construed as an irrevocable waiver of that partys opportunity to nominate an Arbitrator.
9.5 Appointment by Council
9.5.1 If the arbitration agreement or Rule 9.3.2 requires appointment of sole Arbitrator but no procedure for nomination is agreed or no nomination or confirmation under Rule 9.4.3 has been made, the Registrar, in consultation with the Chairperson of the Governing Body and in his absence in consultation with the member of the Governing Body designated by the Chairperson, shall appoint the sole Arbitrator in writing from among the Panel of Arbitrators. The sole Arbitrator so nominated shall constitute the Arbitral Tribunal to hear the dispute. The Registrar shall give notice to the parties of the constitution of the Arbitral Tribunal.
9.5.2 If the arbitration agreement or Rule 9.3.3 requires appointment of three Arbitrators but no procedure for nomination is agreed or no nomination or confirmation under Rule 9.4.4 has been made, the Registrar, in consultation with the Chairperson of the Governing Body and in his absence in consultation with the Member of the Governing Body designated by the Chairperson, shall appoint all three or the required number of Arbitrator(s) in writing from the Panel of Arbitrators and one of the Council appointed Arbitrators shall be designated by the Registrar as the Umpire of the Arbitral Tribunal so constituted. The Arbitrators so appointed shall constitute the Arbitral Tribunal. The Registrar shall give notice to the parties of the constitution of the Arbitral Tribunal.
9.6 Multiple parties
9.6.1 Where there are multiple parties, whether as Claimant or as Respondent in a dispute, and where such dispute is to be referred to three Arbitrators, the multiple Claimants, jointly, and the multiple Respondents, jointly, shall nominate their respective Arbitrator for confirmation and the Registrar shall proceed in accordance with Rule 9.4.4.
9.6.2 In the absence of such a joint nomination and where all parties are unable to agree to a method for the constitution of the Arbitral Tribunal, Registrar shall appoint all three or the required number of Arbitrator(s) from the Panel of Arbitrators in accordance the Rule 9.5.2.
9.7 Challenge of Arbitrator
9.7.1. Any party shall have the right to challenge the appointment of an Arbitrator within 15 days of the receipt of the notice of his appointment or of his becoming aware of the reason which will disqualify him as an impartial or independent Arbitrator. Copies of the communication of challenge, if necessary, may be sent to the concerned parties including the other Arbitrator(s). Unless the Arbitrator in question withdraws himself or all other parties, if notified, agree to the challenge within 15 days of the receipt of such notice, the Registrar along with two Members of the Governing Body designated by the Chairperson shall consider the grounds of such challenge and their decision shall be final and binding on all the parties.
9.8 Replacement of Arbitrator
9.8.1 An Arbitrator shall be replaced on his death, mental or serious physical incapacity, upon the acceptance by the Registrar of the Arbitrators resignation, upon acceptance by the Council of a challenge under Rule 9.7 or, when he is found disqualified under Rule 8.6 or, upon the request of all the parties. An Arbitrator may also be replaced on the Councils own initiative when it decides that he is prevented de jure or de facto from fulfilling his functions, or that he is not fulfilling his functions in accordance with the Rules or within the prescribed time limits. The Registrar shall terminate the authority of such an appointed Arbitrator and inform him accordingly and decide upon the amount of fees and expenses to be paid for the services rendered by him as it may consider appropriate under the circumstances.
9.8.2 In case of the resignation or death or termination of authority of an appointed Arbitrator under Rule 9.8.1, a new Arbitrator will be appointed in his place by the Registrar in case he had appointed the original Arbitrator. Where the nomination was made by a party to the arbitration, the Registrar shall call upon the party who had nominated the said Arbitrator to nominate another Arbitrator in his place. If any party refuses or neglects to nominate an Arbitrator within 15 days of the date of notice requiring him to nominate another Arbitrator or within such extended time, the Registrar shall appoint another Arbitrator on behalf of that party from among the Panel of Arbitrators and his decision will be final and binding on all the parties.
9.8.3 The Arbitrator(s) appointed earlier will be informed about the reconstitution of the Arbitral Tribunal and the reconstituted Arbitral Tribunal shall make the Award expeditiously within the time prescribed under these Rules. The reconstituted Arbitral Tribunal in its first meeting shall determine if and to what extent prior proceedings shall be repeated.
9.9.1 The parties will obtain consent of the person(s) nominated by them as Arbitrator(s) and intimate the Council accordingly. Similarly the Registrar will obtain the consent of the Arbitrator(s) nominated by him. After an Arbitrator gives his consent for appointment as an Arbitrator, he will be duly intimated about his appointment to decide the dispute by a memo in writing under the hand of the Registrar about the constitution of the Arbitral Tribunal.
9.10 Date of Appointment
9.10.1 The appointment of an Arbitrator will take effect from the date of intimation about the constitution of the Arbitral Tribunal under Rule 9.9.
9.11 Date of reference
9.11.1 The Registrar shall send copies of all papers relating to arbitration received from the parties to the dispute to the Arbitrator/Arbitrators constituting the Arbitration Tribunal with a request to proceed with the arbitration and the Arbitral Tribunal shall be deemed to have entered on the reference the day on which applications, defence statement, counterclaims, replies, documents, etc have been dispatched to the Arbitrator/Arbitrators. Intimation shall be given to the parties of the day on which the Bench is deemed to have entered on the reference. If the Claimant does not file all the requisite documents, papers, etc. or does not deposit the appropriate Fees as per the Rules after having been given due opportunity for the purpose by the Registrar or the Arbitral Tribunal, the Registrar or the Arbitral Tribunal may dismiss/close the case on file. Similarly, if the Respondent fails to produce any requisite documents, papers including the statements of defence or information or fails to deposit administrative fees or Arbitrators fees etc. after having been given due opportunity for the purpose by the Registrar or the Arbitral Tribunal, the Registrar or the Arbitral Tribunal may proceed further with the arbitration proceedings as per the Rules, notwithstanding such failure or refusal by the Respondent.
9.12 General provisions regarding Arbitrators
9.12.1 All Arbitrators conducting an arbitration under these Rules shall be and remain at all times impartial and independent of the parties involved in the arbitration and he shall not act as an Arbitrator where he will have reason to doubt as to his impartiality or independence; and none shall act in the said arbitration as an advocate for any party. No Arbitrator, after his appointment, shall advise any party on the merits or likely outcome of the arbitration.
9.12.2 Before appointment or nomination and confirmation, a prospective Arbitrator shall sign a statement to the effect that there will be no circumstances known to him likely to give rise to any justifiable doubts as to his impartiality or independence, other than any circumstances already disclosed by him before giving his consent under Rule 9.9. If any such circumstance is disclosed, the Registrar shall provide such information to the parties in writing and fix a time limit for any comments from them. If the parties are willing to proceed under the circumstances disclosed, they shall advise the Registrar accordingly within such time fixed by the Registrar. If either party declines to waive the presumptive disqualification or fails to reply within the stipulated time fixed by the Registrar, the prospective Arbitrator shall be disqualified from acting as an Arbitrator and the vacancy so created shall be filled under Rule 9.8.
9.12.3 Each Arbitrator shall also assume a continuing duty forthwith to disclose in writing to the Council, to any other members of the Arbitral Tribunal and to all the parties any circumstances likely to give rise to any justifiable doubts as to his impartiality or independence after the formation of Arbitral Tribunal and before the arbitration is concluded.
9.12.4 The decisions of the Council as to the appointment, confirmation, challenge or replacement of an Arbitrator shall be final and the Council is not required to give any reason for such decisions to anyone.
9.12.5 By accepting to serve, every Arbitrator undertakes to carry out his responsibilities in accordance with these Rules.
Rule 10 JURISDICTION OF ARBITRAL TRIBUNAL
10.1 The Arbitral Tribunal shall have the power to rule on its own jurisdiction, including any objection to the initial or continuing existence, validity or effectiveness of the Arbitration Agreement. A decision by the Arbitral Tribunal that such other agreement is non-existent, invalid or ineffective shall not entail ipso jure the non-existence, invalidity or ineffectiveness of the arbitration clause.
10.2 A plea by the Respondent that the Arbitral Tribunal does not have jurisdiction shall be treated as having been irrevocably waived unless it is raised not later than the date of submission of the Response; and a similar plea in relation to a counterclaim by the Claimant shall be treated likewise unless it is raised by the Claimant not later than the date of submission of the reply to the Response and counterclaim. A plea that the Arbitral Tribunal is exceeding the scope of its authority shall be raised promptly after the Arbitral Tribunal has indicated its intention to decide on the matter alleged by any party. In any case, the Arbitral Tribunal may nevertheless admit an untimely plea if it considers the delay justified in the particular circumstance. The Arbitral Tribunal may determine the plea to its jurisdiction or authority in the form of a preliminary order or later in the final Award, as it considers appropriate under the circumstances.
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.
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 Arbitrators 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.
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.