Issues in Jurisdiction, Choice of Law and Lex-Arbitri Provisions in International Commercial Arbitration under Arbitration Act, 2001 in Bangladesh

The research explores and emphasizes upon jurisdictional issues, choice of law and lex arbitri provisions as major points in international commercial arbitration under Arbitration Act, 2001 in Bangladesh. It discusses the involvement of court, supervisory power of court on arbitration proceedings, and enforcement of foreign arbitral award in Bangladesh.

Issues in Jurisdiction, Choice of Law and Lex-Arbitri
Provisions in International Commercial Arbitration
under Arbitration Act, 2001 in Bangladesh

Abstract
The International commercial arbitration has appeared as the significant mechanism for dispute
settlement presently in international trade, commerce and foreign direct investment as they
possess independence and regulation over dispute resolution process regarding choice of law, lex
arbitri as well as seat of arbitration. Bangladesh has incorporated the modern practices of
worldwide commercial arbitration and implemented the 2001 Act, which includes the
requirements of choice of law, party independence and applicability of lex arbitri as well as
employment of foreign arbitral award in Bangladesh. The involvement of court has also been
kept to minimal level.

Contents
Abstract............................................................................................................................................2
Introduction......................................................................................................................................4
International Commercial Arbitration in Bangladesh......................................................................4
Jurisdictional Objections to Arbitral Tribunal.................................................................................6
Court and Arbitration Tribunal........................................................................................................7
Supervisory Power of Court on Arbitration Proceedings................................................................9
Choice of Law - Party Autonomy on the Choice of Seat and the Lex Arbitri...............................10
Enforcement of Foreign Arbitral Award in Bangladesh................................................................12
Bangladesh Arbitration Rule: Challenges and Views...................................................................14
Conclusion.....................................................................................................................................14
References......................................................................................................................................15

Introduction
The legal system existing in Bangladesh considers arbitration as a tradition which was previously
used for the purpose of resolution of dispute and was administrated by the Arbitration Act, 1940.
Most of the provisions of the Arbitration Act, 1940 were outdated as compared to the
contemporary arbitration regulations existing in various parts of the world. Under the Arbitration
Act, 1940, the extensive use of arbitration procedures involved the role of courts in the
arbitration procedure, its regulation as well as implementation of arbitral awards as well.
However, the implementation of arbitral award has been demonstrated to be slow and
burdensome as for its implementation, order could be obtained from the District Court. After the
implementation of the new Arbitration Act, 2001, the utilization of arbitration in the form of
alternative to the resolution of dispute related procedures has increased. Bangladesh has started
taking the initiatives for reform and it is predictable that the new Arbitration Act, 2001 would
make changes in the execution of international arbitral awards as declared in the New York
Convention, of which Bangladesh is also a member. Both business community as well as
government has positively reacted to the enactment of the 2001 Act. The Division of the High
Court has established a specific bench with the jurisdiction of nomination of arbitrators regarding
international arbitration. The research will explore and emphasize upon jurisdictional issues,
choice of law and lex arbitri provisions as major points.
International Commercial Arbitration in Bangladesh
For the purpose of effective dispute resolution in international trade as well as commerce, the
arbitration is considered as a significant process. The reason behind business community to

believe on arbitral process is for the expansion of whole trade system instead of challenges
across the world. Lack of arbitration might even threaten the stability of safe international
business as well as commercial structure of trade.1 In order to achieve the international
obligations with the New York Convention and UNICITRAL, Bangladesh enacted the arbitration
law known as Arbitration Act, 2001 and annulled the Arbitration Act of 1937 as well as the
Arbitration Act of 1940.2 The country has implemented various policies in order to increase the
foreign investment. Bangladesh realizes its obligation for the defense of foreign private
investment in the country by ratifying the 1965 Conventions on the Settlement of Investment
Dispute between States as well as Nationals of other States (ICSID Convention) which is also
known as Washington Convention. Bangladesh is also a member of 1958 Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), as well as
the UNCITRAL Model Law regarding International Commercial Arbitration of 1985 that has
been amended in 2006.3 Despite offering effective dispute resolution, international commercial
arbitration had to face serious challenges such as employing arbitrators, implementing minimal
standards and proficiency, cost related issues in arbitration, implementation of arbitral awards,
authority of arbitrators, institutional bias, and ability of control and supervision of national courts
upon international commercial arbitration.
1 Kamal Uddin Bhuiyan and Md. Jahangir Alam, Niko Case and the Prospect of Foreign Investment in
Bangladesh (2015) thedailystar.net <https://www.thedailystar.net/niko-case-and-the-prospect-of-foreign-
investment-in-bangladesh-50667>.
2 Professor Dr A F. M. Maniruzzaman, "The New Law of International Commercial Arbitration in
Bangladesh: A Comparative Perspective" (2003) 14 American Review of International Arbitration
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1342329>.
3 Husain M. Al-Baharna, "International Commercial Arbitration in Perspective" (1988) 3(1) Arab Law
Quarterly.

Jurisdictional Objections to Arbitral Tribunal
The competence-competence principle provides the authority to the arbitral tribunal in order to
govern its authority and relevant oppositions regarding the disputed entitlements. This principle
was introduced in the English law by the Arbitration Act of 1996 and stated that except if not
consented by the related parties, and subjected to challenges by arbitral procedure of appeal or
review or alliance with the provisions of Part I of the 1996 Act, an arbitral tribunal might rule
upon its own fundamental authority regarding if there is lawful arbitration agreement, if tribunal
has been appropriately established and if the issues have been given to arbitration consistent with
the arbitration agreement. The ability of the arbitral tribunal in inducing jurisdictional objections
require various terms and conditions to be fulfilled such as presence of legalized arbitration
agreement amongst the parties, the prospect of the arbitration agreement should include the
matter of dispute as well as the arbitral tribunal is required to be aptly established.
There are certain restrictions of the 2001 Act such as Section 17 has mentioned five
jurisdictional questions upon which arbitral tribunal might apply its power of competence-
competence.4 The five questions are whether there is presence of lawful arbitration agreement,
whether arbitration agreement is incompetent to be executed, the issues have been provided for
arbitration according to the arbitration agreement. The arbitral tribunal deals with the issue of
competence if applied by either of the parties. Section 18 has discussed about the amendments in
the arbitration clause and explains that arbitration agreement which is a part of another
agreement is considered as separate agreement at the time of decision making for defining the
jurisdictional authority of arbitral tribunal.5 Thus, without taking into consideration that the
4 Rahmansc, International Arbitration – Law Firm in Dhaka, Bangladesh (2018) Rahmansc.com
<http://rahmansc.com/international-arbitration/>.
5 Maimul Ahsan Khan, "Issues of Jurisdiction, Choice of Law and Enforcement in International
Commercial Arbitration: A Bangladesh Perspective" [2018] Private International Law

fundamental or parent contract might be void, it becomes completely possible to have a binding
arbitration agreement emerging from the same contract.
Court and Arbitration Tribunal
The contradiction of arbitration is that it examines the support of the public authorities to remain
free which requires relationship between the courts and arbitral processes. In various situations,
the influence of national systems appears to be normal, expected, and welcomed, though other
times, it might appear troublesome and unjustified. The knowledge of these characteristics is
beneficial for assessing the possibility of party independence and the way topmost parties should
take benefit of international arbitration and identify drawbacks and possible consequences and
remedies as well.6 The courts should identify the reasons slowly in order to undertake authority
over an issue that the parties have contracted to consider for the purpose of arbitration. It should
also be kept in mind that the International Arbitration Act was aimed to reduce the contribution
of courts in the issues that are decided by the parties to be taken for arbitration.7
The existing arbitration and court actions should be avoided except if it is regarding offering of
essential support for the arbitral process. In addition, jurisdictional challenges must also be
handled quickly and decisively as the preparedness of the courts to deal with jurisdictional
challenges or use supervisory role regarding arbitration proceedings, it will inspire the parties to
stall the proceedings of arbitration, which in sequence, reduce the pace of arbitrations and
<https://link.springer.com/chapter/10.1007/978-981-10-3458-9_14>.
6 ITC, Rules of Arbitration of the Bangladesh Council of Arbitration (2018) Intracen.org
<http://www.intracen.org/Rules-of-Arbitration-of-the-Bangladesh-Council-of-Arbitration/>.
7 Rajin Ahmed, "International Commercial Arbitration in Bangladesh" (2014) 21(107) The Financial
Express.

enhance the overall costs of proceedings.8 Thus, the role of the court is to provide backing the
arbitral process instead of displacing it.
The involvement of the court has been anticipated by the Arbitration Act 2001in various sections
of the Act which are Section 8 (arbitration agreement as well as practical claim before Court for
stay on proceedings), Section 7A (temporary measures), Section 12 (employment of arbitrators),
Section 14 (challenge processes), Section 15 (termination of arbitrator’s mandate), Section 17
(capability of arbitral tribunal to regulate its jurisdiction), Section 33 (assistance of court in
taking evidence), Section 42 (setting aside an award) and Section 44 and Section 45
(appreciation and implementation of awards). In this manner, the Arbitration Act 2001 enables
the national courts of Bangladesh to play significant role in assisting the arbitration tribunal and
provides them the authority to intervene in some cases by not providing the awards in case of
breach of basic rights of parties or when arbitral tribunal has acted beyond its jurisdiction
powers.9 However, arbitration is described by flexibility and autonomy from the procedures of
litigation which is not a substitute of the court but interconnected to each other and both can
perform together in order to reduce the accumulation of cases.10
Supervisory Power of Court on Arbitration Proceedings
Previously, the English Courts did not prefer arbitration and used to consider arbitrators as their
opponents. In middle of the 20th century, the English Courts started changing their attitudes
8 R. Goode, "The Role of the Lex Loci Arbitri in International Commercial Arbitration" (2001) 17(1)
Arbitration International.
9 Karl-Heinz Böckstiegel, "Role of the State on Protecting the System of Arbitration" in Ciarb Centenary
Conference (2015) <http://www.ciarb.org/docs/default-source/ciarbdocuments/london/b
%C3%B6ckstiegel.pdf?sfvrsn=0>.
10 Professor David A R Williams QC, "Defining the Role of The Court in Modern International
Commercial Arbitration" (Lecture, Singapore, 2012).

concerning to the arbitration proceedings and commercial courts started identifying the self-
sufficiency of the arbitration process. However, the courts continued supervising the arbitration
process through case-stated method and arbitrators were required to state cases on a question of
law for the judgement of the court regarding the issue. In Bangladesh, there were provisions in
the Arbitration Act 1940 which permit the courts for intervening in the arbitration proceedings.
However, Act 2001 aims to restrict it despite holding the supervisory role of the courts in a
restricted manner. Section 7 of the Act 2001 limits the court to decide the matters in which either
of the parties in the procedures of the arbitration initiates for the procedures of the court. In
Bangladesh Jute Mills Corporation v Maico Jute and Bag Corporation & Others, it was stated
that the court cannot try the case which is already pending to the arbitral tribunal. Section 7A of
the Act authorizes the local courts to make interim or temporary orders regarding matters such as
for temporary orders to confine the transfer of property about to create obstruction to the
enactment of arbitral award. Similar to Section 7 of the Act, the courts in Bangladesh shall not
intervene in the matter exposed to arbitration agreement existing between the opposing parties
under Section 10 of the Act.11 If a party under arbitration agreement initiates trial to a court in
Bangladesh while the other party has objection to it before the filing of the statement of defense,
then the court should halt the proceedings and advise the parties for arbitration until they are
convinced that the agreement is annulled, out of action or unable to be resolved by arbitration.12
This section is in line with the commonly conventional principle that authority to search for
arbitration is a predetermined right and a contract cannot be individually repealed for the purpose
11 P A Bergin, "Meeting Challenges Posed by Modern International Commercial Litigation" in
Fifth Judicial Seminar on Commercial Litigation (2016)
<http://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/
2016%20Speeches/Bergin_20161020.pdf>.
12 M. B. Cobb, "Domestic Courts' Obligation To Refer Parties To Arbitration" (2001) 17(3) Arbitration
International.

of avoiding the arbitration clause. Under Section 10 of the Act, any party or person under
arbitration agreement appealing commences legal actions against any other party or person to the
agreement appealing any issue to be raised for the arbitration, any party to such legal actions
might appeal to the court any time before filing statement, before which, the actions are awaiting
to raise the issue to the arbitration. Then, there is no chance for raising the dispute to the
arbitration and local court are assigned with the jurisdiction for resolving the dispute.13 The
introduction of Section 89B of the CPC 1908 which states that if parties apply to the court for
drawing back the case at any stage of proceedings based on stating the dispute for the arbitration,
then the local court will permit the case to be taken back and subsequently, the dispute can be
considered for settlement according to the Act.14
Choice of Law - Party Autonomy on the Choice of Seat and the Lex Arbitri
The ability of selecting an entirely neutral position without any association to the parties under
argument is beneficial for international arbitration over litigation. In general, in litigations, it
becomes hardly possible for the parties to choose court to resolve their disputes. On the basis of
rules of that particular court, the connection between the court and parties or dispute is essential
for the acceptance of jurisdiction by court. Actually, there is requirement of laws and courts
promoting international arbitration.15 The position should be member to the New York
Convention countries as most of the jurisdictions have executed the New York Convention with
13 Luca G. Radicati di Brozolo, The Relation between Courts and Arbitration: Support or Hostility (2012)
Papers.ssrn.com <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2125445>.
14 Thomas E. Carbonneau, The Rise in Judicial Hostility to Arbitration: Revisiting Hall Street Associates
(2013) Elibrary.law.psu.edu <https://elibrary.law.psu.edu/cgi/viewcontent.cgi?referer=https://
www.google.co.in/&httpsredir=1&article=1258&context=fac_works>.
15 John Wood, "Opening The Door To Justice: Amending The Federal Arbitration Act To
Remedy The Unjust Use Of Predispute Arbitration Agreements" [2012] SSRN Electronic
Journal.

mutually beneficial reservations. The arbitration rule of the position should provide for the
preferred level of judicial intervention and control. The trends in contemporary international
arbitration laws include Model Law jurisdictions for the purpose of restricted judicial control or
extremely delocalized proceedings of arbitration.16 Generally, the parties are free to decide the
position at any time which is done by arbitration agreement, however, it might be agreed upon
later as well. The liberty to select the seat of arbitration is extremely significant under
institutional arbitration rules and is known as lex arbitri of majority countries thus ensuring the
preeminence to party independence and liberty of parties for the purpose of choosing the seat of
arbitration.
Rarely, the arbitration rules deny parties any kind of freedom to select the seat, however, Section
3 (1) of 2001 Act of Bangladesh appears to be an exclusion which describes that the arbitration
act is applicable where the arbitration place is Bangladesh. However, if either or both the parties
are not from Bangladesh, the seat can be outside the country. Previously, the courts of
Bangladesh were involved in contradictory decisions regarding the scope of powers over
arbitration to be seated outside Bangladesh. In STX Corporation Ltd. case,17 the High Court of
Bangladesh rejected to provide an interim remedy when the arbitration proceedings were seated
out of the country which affected the international business community as they had no
opportunity to appeal in Bangladesh regarding arbitration to be conducted outside Bangladesh.
The arbitral tribunals have been gifted with the authority to pass an interim award which is
enforceable as final award to be provided by the Court. Under section 21, the arbitral tribunal
16 Michael H. Leroy and Peter Feuille, "Judicial Enforcement of Predispute Arbitration
Agreements: Back To the Future" (2003) 18(2) Ohio State Journal on Dispute Resolution.
17 STX Corporation Ltd v Meghna Group of Industries Limited and others (2012) 2 Arbitration
Application No.16 of 2009.

possesses the authority to order a party to take any temporary defense at the appeal of a party as
the arbitral tribunal considers essential regarding dispute and such awards are not appealable. It
is essential for the Parliament of Bangladesh to amend the 2001 Act to specifically include
provisions requiring that the courts of Bangladesh possess the authority to issue interim remedies
in arbitrations seated in foreign countries and accept international arbitral awards without
overruling.18
Enforcement of Foreign Arbitral Award in Bangladesh
The decision of the arbitration award by the Arbitral Tribunal is based on terms and conditions of
contract and the evidences provided by the parties during the arbitration process on the basis of
rule of law as chosen by the parties. Under Section 36(2) of 2001 Act, if parties fail to designate
the rules, the rule of law is practiced by the Arbitral Tribunal. The arbitration award should be in
text and verdict should be made by the majority of members in case there is more than one
arbitrator. The arbitration award is lawfully implemented in the court of the state or country
having jurisdiction regarding dispute and challenged only under certain restricted conditions.
Section 45 represents Article III of the New York Convention, which makes foreign arbitral
award mandatory on parties concerning the arbitration agreement and can be executed by the
local court as its own verdict.19
18 William W. Park, "The Lex Loci Arbitri and International Commercial Arbitration" (1983)
32(1) International and Comparative Law Quarterly.
19 Doug Jones, "Factors to Consider in the Choice of Procedural and Substantive Law in International
Arbitration" (2014) <http://journalsonline.academypublishing.org.sg/Journals/Singapore-Academy-of-
Law-Journal-Special-Issue/e-Archive/ctl/eFirstSALPDFJournalView/mid/513/ArticleId/332/Citation/
JournalsOnlinePDF>.

There are certain aspects in which, 2001Act does not match with the standards of the New York
Convention.20 The evidences required for the application under the Act for the purpose of
executing foreign arbitral award is more time-consuming as applicants are required to submit
evidences to prove it as foreign award in the court. Furthermore, along with original document of
arbitral award, actual or certified copy of arbitration agreement and certified conversions of all
the documents are required.21
The Act only takes into consideration, the territorial aspect of the arbitral award, instead of lex
arbitri under which the award was extracted. The issue of implementation of arbitral awards in
Bangladesh is a serious problem which should be resolved quickly.
Bangladesh Arbitration Rule: Challenges and Views
 The implementation of arbitral award was identified to be slow and complicated and a
doubt exists whether to implement arbitral awards when the Bangladesh settled to the
New York Convention.
 The courts are destined to raise the parties to arbitration in case of existence of arbitration
agreement.
 The law of Bangladesh permits the contracts to raise dispute settlement to third country
forums for the purpose of resolution.
20 Maren Heidemann, "Methods of Integration through Commercial Arbitration" in Methodology of
Uniform Contract Law (Springer, 2018).
21 Klaus Peter Berger, "Integration of Mediation Elements into Arbitration: ‘Hybrid’ Procedures and
‘Intuitive’ Mediation by International Arbitrators" in Arbitration International, Volume 19, Issue 3 (3rd
ed, 2003) <https://academic.oup.com/arbitration/article-abstract/19/3/387/215569?redirectedFrom=PDF>.

 Bangladesh is already a party to the SAARC Agreement for establishing Arbitration
Council, which intends to launch a permanent center for alternative dispute resolution in
one of the SAARC member countries.22
Conclusion
The 2001 Act has been found to be varying as compared to the New York Convention as well as
the Model Law regarding appreciation and application of foreign arbitral awards. The new
Arbitration Act deals wholly with the foreign awards in undertaking an arbitration agreement in
any other territory but does not include award being provided in the region of a specific state.
Thus, the possibility of rules regarding the appreciation and execution of foreign arbitral awards
under new Act is contracted as compared to Model Law as well as New York Convention.
However, there is not any point in ratification in the New York Convention unless the related
State prefers to honor such obligations and do not implement and follow the provisions in an
appropriate manner. However, the issue can be addressed effectively through advanced
education and proper training along with regular judicial encounters or contracts regarding this
area of law. In order to resolve the issues related to ambiguity in legal matters, it is imperative to
make the mechanism dynamic, efficient and acceptable to the parties regarding choice of law and
foreign arbitral awards.
References
Ahmed, Rajin, "International Commercial Arbitration in Bangladesh" (2014) 21(107) The
Financial Express
22 Alessandra Casella, "On Market Integration and the Development of Institutions: The Case of
International Commercial Arbitration" (1996) 40(1) European Economic Review.

Al-Baharna, Husain M., "International Commercial Arbitration in Perspective" (1988) 3(1) Arab
Law Quarterly
Berger, Klaus Peter, "Integration of Mediation Elements into Arbitration: ‘Hybrid’ Procedures
and ‘Intuitive’ Mediation by International Arbitrators" in Arbitration International, Volume 19,
Issue 3 (3rd ed, 2003) <https://academic.oup.com/arbitration/article-abstract/19/3/387/215569?
redirectedFrom=PDF>
Bergin, P A, "Meeting Challenges Posed by Modern International Commercial Litigation"
in Fifth Judicial Seminar on Commercial Litigation (2016)
<http://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/
2016%20Speeches/Bergin_20161020.pdf>
Böckstiegel, Karl-Heinz, "Role of the State on Protecting the System of Arbitration" in Ciarb
Centenary Conference (2015)
<http://www.ciarb.org/docs/default-source/ciarbdocuments/london/b%C3%B6ckstiegel.pdf?
sfvrsn=0>
Cobb, M. B., "Domestic Courts' Obligation to Refer Parties to Arbitration" (2001)
17(3) Arbitration International
Goode, R., "The Role of the Lex Loci Arbitri in International Commercial Arbitration" (2001)
17(1) Arbitration International
Khan, Maimul Ahsan, "Issues of Jurisdiction, Choice of Law and Enforcement in International
Commercial Arbitration: A Bangladesh Perspective" [2018] Private International
Law <https://link.springer.com/chapter/10.1007/978-981-10-3458-9_14>
Maniruzzaman, Professor Dr A F. M., "The New Law of International Commercial Arbitration in
Bangladesh: A Comparative Perspective" (2003) 14 American Review of International
Arbitration <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1342329>
Williams QC, Professor David A R, "Defining the Role of the Court in Modern International
Commercial Arbitration" (Lecture, Singapore, 2012)
Wood, John, "Opening the Door to Justice: Amending the Federal Arbitration Act to Remedy the
Unjust Use of Predispute Arbitration Agreements" [2012] SSRN Electronic Journal
Bhuiyan, Kamal Uddin and Md. Jahangir Alam, Niko Case and the Prospect of Foreign
Investment in Bangladesh (2015) Thedailystar.net <https://www.thedailystar.net/niko-case-and-
the-prospect-of-foreign-investment-in-bangladesh-50667>
Carbonneau, Thomas E., The Rise in Judicial Hostility to Arbitration: Revisiting Hall Street
Associates (2013) Elibrary.law.psu.edu <https://elibrary.law.psu.edu/cgi/viewcontent.cgi?
referer=https://www.google.co.in/&httpsredir=1&article=1258&context=fac_works>
ITC, Rules of Arbitration of the Bangladesh Council of Arbitration (2018) Intracen.org
<http://www.intracen.org/Rules-of-Arbitration-of-the-Bangladesh-Council-of-Arbitration/>

Radicati di Brozolo, Luca G., The Relation between Courts and Arbitration: Support or
Hostility (2012) Papers.ssrn.com <https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2125445>
Rahmans, International Arbitration – Law Firm in Dhaka, Bangladesh (2018) Rahmansc.com
<http://rahmansc.com/international-arbitration/>
Casella, Alessandra, "On Market Integration and the Development of Institutions: The Case of
International Commercial Arbitration" (1996) 40(1) European Economic Review
Heidemann, Maren, "Methods of Integration through Commercial Arbitration" in Methodology
of Uniform Contract Law (Springer, 2018)
Jones, Doug, "Factors to Consider in the Choice of Procedural and Substantive Law in
International Arbitration" (2014)
<http://journalsonline.academypublishing.org.sg/Journals/Singapore-Academy-of-Law-Journal-
Special-Issue/e-Archive/ctl/eFirstSALPDFJournalView/mid/513/ArticleId/332/Citation/
JournalsOnlinePDF>
Leroy, Michael H. and Peter Feuille, "Judicial Enforcement of Predispute Arbitration
Agreements: Back to the Future" (2003) 18(2) Ohio State Journal on Dispute Resolution
Park, William W., "The Lex Loci Arbitri and International Commercial Arbitration" (1983)
32(1) International and Comparative Law Quarterly
STX Corporation Ltd v Meghna Group of Industries Limited and others (2012) 2 Arbitration
Application No.16 of 2009