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Friday, January 4, 2013

Existing procedure of ADR in Bangladesh


Sum-up of all legal provisions available in Bangladesh
In Civil Suits:
1. Code of Civil Procedure
  • Mediation u/s 89A
  • Arbitration u/s 89B.
     2. Muslim Family Laws Ordinance,1961
  • Polygamy u/s 6
  • Divorce u/s 7
  • Maintenance u/s 9
     3. Family Court Ordinance,1985
  • Pre-trial Proceeding u/s 10
  • Post-trial Proceeding u/s 13
    4. Artha Rin Adalat Ain, 2003
  •  Settlement Conference u/s 21
  • Mediation u/s 22
    5. Gram Adalat Ain, 2006 [all sections] 

   6. The Conciliation of Disputes (Municipal) Board Act, 2004 [all sections] 

   7. The Arbitration Act, 2001 [all sections]

    8. The Labor Code, 2006

  •   Negotiation u/s 210(1,2,4)
  • Conciliation u/s 210(6)
  • Arbitration u/s 210(16)

In Criminal Cases: 
1. The Criminal Procedure Code,1898 
  • Compounding offences u/s 345


Brief discussion of some of the aforesaid Statutes & its provisions
Code of Civil Procedure
There is no provision related Alternative Dispute Resolution directly in Civil Procedure Code by mediation. But in previous we perceived that Section 89 and sub section 1 of Section 104 in CPC had been for dispute resolution. After that in year 2000, ADR in civil procedure is the effect of success of Pilot project 2000 on mediation in Dhaka judge court and besides some other courts of Bangladesh. In Section 89a and 89b of the Code of Civil Procedure 1908, mediation and arbitration respectively has been incorporated through the Amendment, 2003[1].
As to the provision of Section 89(a) of CPC, mediation can be define that mediation mean flexible, informal, non-binding, confidential, non-adversarial and consensual dispute resolution process in which the mediator shall facilitate compromise of disputes in the suit between the parties without directing or directing the term of such compromise.
As to the provision of 89 after filling of plaint by the plaintiff and written statement by defendant, the court may take an initiative to settle the dispute by Mediation. If the contesting parties agree to settle the dispute through mediation, the court shall so mediate or refer to District Judge for settle the penal. The mediator will be selected from the District Judge itself, any retired judge, a lawyer nominated by the parties who is not involve with either parties, except person holding office of profit in the service of Republic. When the court shall mediate, it shall determine the procedure of the mediation and conducted by court and the pleader, their respective client and the mediator will mutually determine the fees and the procedure. If the mediation process is filed, the court shall precede the suit for hearing from the stage at where the suit stood before refer to mediation. And if the mediation by the court and it fails, the same court shall not hear and the suit shall be heard by another court of competent jurisdiction. If the mediation is successfully over, the term of such compromise shall be reduced into writing in the form of agreement and taken signatures or thumbs impressions of the parties as executants and pleaders and mediator as witness. Finally, the court will pass an order or decree to the reliant provision of Order 23 that code.

The mediation shall be conducted within 60 days from the day on which the court is so informed. But the time of execution for further period shall not exceed 30 days. After a successful mediation the parties will get return court fees. No appeal shall lie against the order or decree passed the court of mediation.
Section 89 (b) has extended the opportunity to settle the dispute alternative way through arbitration. Under this section, any stage of the proceeding parties can make an application to solve the dispute through the arbitration and withdraw the suit to the court. The court shall allow the applicant and permit to withdraw the suit. This arbitration shall comply with the Shalish Ain, 2001. If any reason the arbitration dose not take place or fail to give award, the parties shall be entitle to re-institute the suit. That application shall be deemed to be arbitration under Section 9 of the Shalish Ain, 2001.
As if mediation has accomplished on the application of contesting parties, the court passed a order and the contesting parties must be submissive on that order. But the court cannot create any kinds of pressure for the mediation, which has been described on the section 89 of CPC. The contesting parties can be settle their dispute wholly or partly by mediation.
Former Justice of Bangladesh High Court and First Director of Judicial Administration Training Centre Justice Md. Baruzzaman would be answering that, “under the present provision of law it is not mandatory for the Judge himself to mediate or refer the dispute for mediation, but in doing so the Judge must exercise his discretion by taking into consideration the intention of the legislature and the cause of just, speedy and inexpensive justice[2]”.
As per the provision of the Sub-section (4) of section 89 a  Within 10 days from the date of submission of written statement, the parties shall inform the court in writing as to whether they have agreed to try to settle the dispute or disputes in the suit by mediation and whom they have appointed as mediator, failing written statement will stand cancelled and the suit shall be proceeded with for hearing by the court their agreement to try to settle the dispute or disputes in the suit through mediation and appointment of mediator, the mediator shall be conclude within 60 days from the date on which the court is so informed, unless the court of its own motion or upon a joint prayer of the parties extends the time for a further period of not exceeding 30 days.
As to the provision of sub-section (12) of the section 89(a) of CPC, no appeal or revision shall lie against any order or decree passed by the court in pursuance of settlement between the parties.
Though trial courts have been exercised ADR in civil suit according to the provision of Act III of 2003, but there is no jurisdiction of appellate court. For that, So many cases were pending for settlement in the Appellate court year to year. At last, Act 8 of 2006 has created an opportunity to settle the cases by using mediation. Provision of mediation in Appeal is as follows –
Appellate Court may mediate in an appeal or refer the appeal for us the shining mediation in order to settle the dispute here are or disputes in that appeal, if the appeal is an appeal from original decree under Order XLI, and is between the same parties who contested in the original suit or the parties who have been substituted for the original contesting parties.
In mediation under sub-section (1), the appellate court shall follow the provisions of mediation as contained in section 89a with necessary change as may expedient as far as possible.
Above discussion shows that application of ADR in our civil court is epoch making decision. Though the ADR, the people of our country get privilege as far as possible. As well as the judges and appellate court get relief from the cases which are filed year to year. On that achievement Justice K. M. Hasan give opinion that, “the greatest achievement of the mediation court is changing of mental attitudes of the judges, lawyer, litigants and general public who were skeptical about mediation. Initially, there were feelings of opposition and suspicion by some in the legal profession for this entirely different based discipline but it is changing. Those who used to come the court with confrontation mode are accepting the idea of mediation and more are coming prepared to settle dispute through mediation. It is interesting to note that the same lawyer who fight tooth and nail to win a suit in trail also try hard to find out solution through mediation[3].”

Muslim Family Law Ordinance
Muslim Family Law Ordinance had been effected from 15th July, 1961. Such Ordinance has been applied on every Muslim citizen of Bangladesh both who lives inside in or abroad of Bangladesh. No distinction between Sia or Sunni in front of the Muslim Family Law Ordinance. In the leading case named Nirmal Kanti Das v. Sreemati Bavi Rani[4]  states that application of Muslim Family Law Ordinance,1961 has been overridden by section 3 of Family Court Ordinance in clear language providing that this Ordinance shall have effect not withstanding any thing contained in any other law.
In the mentioned provision subsection (a) of Section 2 of the Muslim Family Law Ordinance ‘Arbitration Council’ means a body consisting of the chairman and a representative of each of the parties to a matter dealt with in this Ordinance.
The chairman constructs an arbitration to settle any kind of dispute related with Muslim Family Law Ordinance. He constructs such council consisting of him and the representative of both the wife and husband. The chairman asked the representative both of wife and husband within seven days from the date of complain. Where any contesting party fails to nominate their representative within the prescribed period, the council shall not stay for any one. They are continued their works.
The chairman can give time for conciliation of nominated representative or new nomination of representative, where their nominated representative is or any kinds of reason he is not start form such situation where previous nominated representative is rescinded.
Where the chairman is not Muslim or he is not desired to attend arbitration council, he may apply the council for nominated the other chairman who is Muslim. The council does the same according the Muslim Family Law Ordinance.
The contesting parties may apply to the collector to stay the hearing of council, where they might be seemed that the chairman support the opposite party. The collector may be staying the hearing until investigation on application is not completed.
As to the provision of Section 6 of the Muslim Family Law Ordinance, no man shall contract another marriage without the permission of arbitration council during the subsistence of an existing marriage.
An application for permission from arbitration council shall submitted to the chairman in the prescribe manner with prescribe fees. The applicant shall state the reason for proposed marriage even though the consent of existing wife or wives has been obtained.
On the reception of application the chairman shall call the applicant and his existing wife or wives each to nominate a representative. If the constitute arbitration council satisfied that the proposed marriage is necessary, just, grant, and fit, may give the permission.
The arbitration council may justify situation of the husband and physical and mental capacity of his wife. Then they decide whether he required permission or not.
Any contesting parties may apply for revision against decision of the arbitration. Any man who contracts another marriage without the permission of the arbitration council shall pay immediately entire amount of the dower due to existing wife or wives. If the amount is not paid by husband, shall be recoverable as arrears of land revenue.
In the leading named Ayessa Sultana v. Shajahan Ali[5] the court states that marriage of 2nd wife without permission of an arbitration council violate law and punishable. As to the provision of the Muslim Family Law Ordinance, any man who contacts another marriage without the permission of the arbitration council shall be punishable with simple imprisonment which may extent to one year or with fine which may extend to ten thousands taka or both.
Sub-section (5) (a) (b) of section 6 of the Ordinance refers to the penalties to which a man exposes himself for contracting another marriage without the permission of the Arbitration Council. Amount of the dower money shall be recoverable under certificate procedure under the provision of the Public Demand Recovery Act on application made on behalf of his wife. A complaint will have to be lodge on behalf his wife, and the offence is triable by the Magistrate of 1st class with a right of an appeal to Sessions Judge with a further right for moving the high court in its revisional jurisdiction under Section 439 of Code of Criminal Procedure[6].
It may be noted in this connection that the words “without the permission to the Arbitration Council” not only mean when no application has been made by the husband but also include the case of an application for permission to contract another marriage but permission has been refused by the Arbitration Council[7].

The Arbitration Act, 2001
Peaceful arbitration for settlement of dispute had been applied from the ancient period. Arbitration had been introduced in Greece, China, Arabia and Italy in 12th century and 13th century. Arbitration took effective impact for settling the international dispute in the end of the 18th century. After, International Arbitration had successfully finished almost 100 cases. In those 100 cases, the United Kingdom and United States of America had participated near about 70 cases. Hague Peace Conference created ordinary impact on International Arbitration in 1899 and 1907. In Hague Peace conference, it had been described about rules, procedure and structure of the arbitration and established Permanent Court of Arbitration. Cordially the arbitration is to be proved as a part of international law. Eventually, arbitration was pronounced as state law.

Concept of Arbitration
The arbitration process begins with an arbitration agreement which is a contract governing the terms and process of the arbitration itself.  Appointment of arbitrator or arbitrator court, condition of arbitration and procedure, jurisdiction of the tribunal etc are decided on the basis of the agreement of the contesting parties. Any kinds of dispute can be solved by the arbitration except the criminal cases. Even the commercial dispute can be solved. Agreement of the contesting parties shows on which law and principal on which the arbitrator settles the matter. The contesting parties may apply to the court to use the principal of Equity, justice and Good Conscience. The decision of the arbitrator is mandatory. On the above statement Greferry M. Beresford Hartwell states in ‘Arbitration as The Moral High Ground of The New Century’ that “ ……..the parties to an arbitration have agreed to some alternative court, they have agree to some alternative court, they have agreed not to go to Court at all. They have agreed to abide by the decision of a friend. That friend may be someone they both know and trust, he or she may be selected by some process they have devised and adopt, but still their direct or indirect choice. They may decide to approach the doyen of their profession or industry they may be happy enough with less exalted. If they have an obscure problem of law, they may ask a lawyer, of technology perhaps someone who knows the tricks of the trade. They may seek the decision of a priest or even a king[8].”    
As to the provision of the Arbitration Act, 2001 ‘Arbitration’ means any arbitration whether or not administrated by permanent institution and ‘Arbitration Agreement’ means an agreement by the parties to submit to arbitration council all or certain dispute which have arisen or which may arise between them in respect of a define legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. Such agreement shall be in writing and signed by the parties. It is contained in an exchange statement of claim and defense in which the existence of the agreement is alleged by one party and not denied by the other party.
The Arbitration Tribunal has no power to settle all kinds dispute. Some particular dispute might be solved by the Council. That kind of ability of the council is called arbitrability of dispute. Where any party to an arbitration agreement or any person claiming under him commence any legal proceeding against any other party to the agreement or any person claiming under him in respect of any matter agreed to be referred to arbitration, any party to such legal proceeding may apply to the court before which the proceeding are pending to refer the matter to arbitration at any time before filing a written statement. If it is satisfied that an arbitration agreement exists, the court refer the parties to arbitration and stay the proceeding unless the find that the arbitration agreement is void.
Composition of Arbitral Tribunal
The parties are free to determine the number of arbitrator. The parties should be appointed the arbitrator within thirty days.  Failing to determine the arbitrators, the tribunal shall consist of three arbitrators. On that point such kinks of arbitrator can be appointed. If it is satisfied by the parties, where there is one man tribunal, District Judge or Justice of the Supreme Court who is nominated by Chief Justice may be appointed as arbitrator. In arbitration with three arbitrators, each party shall appoint one arbitrator and two appointed arbitrator shall appoint third arbitrator who shall be the chair man of the arbitration tribunal. If a party fails to appoint their arbitrator within prescribe period or the appointed arbitrator fails to nominate the third arbitrator, District Judge in case of non-commercial dispute or Justice of Supreme Court designed by Chief Justice in case of commercial dispute are appointed as the third arbitrator.
Arbitrator’s mandate can be terminated for the reason as he withdraws himself from office or he dies or all the parties terminate his mandate or he is unable to perform his function. On the termination of the arbitrator’s mandate the replacement of the arbitrator shall be appointed accordance with above proceedings.
 Jurisdiction and Duties of the Tribunal
The arbitral tribunal may rule on its own jurisdiction on any question as whether there is existence of a valid arbitration agreement or whether the arbitration tribunal is properly constituted or whether the arbitration tribunal agreement is against the public policy or whether agreement is incapable of being performed or what matters have been submitted to arbitration in accordance with the arbitration of agreement.
The arbitration tribunal may use mediation, conciliation or any other procedures at any time during the tribunal proceeding to encourage the settlement. Where the parties settle the dispute, the arbitration tribunal shall record the settlement in any form of the arbitral award on agreed terms. Such arbitral award shall have same status as any other arbitral award made in respect of the dispute.
The arbitral tribunal shall deal with any of the dispute submitted to it fairly and impartially on the evidence as quick as possible and for this purpose each party shall be given reasonable opportunity to present his case orally or in writing or both, or to examine all the document and other relevant material file by other party or any other person concerned before the tribunal. The arbitral tribunal may take evidence by orally or in writing. Even he may administer on oath.
Unless agreed by the parties, the arbitration tribunal may appoint expert or legal adviser to report on specific issue to be determined by the tribunal or appoint assessor tom assist it on technical matter.

Family Court Ordinance
The Family Court has been established in 15th June of 1985 under The Family Court Ordinance. First time mediation was introduced in family court in Dhaka Judge Court in 2000. After that it extended in Chittagong from 12th February of 2001, in Khulna from 1st September, 2001, in Rajshahi from 7th May, 2001. Afterward it expands all over the court of the country.
Mediation has been denoted in Family Court Ordinance, 1985 under Section 10, 11, and 13. And also compromise decree has been prescribed in Section 18 of the Family Court Ordinance[9].
As to the provision of the above Section of the Family Court Ordinance, when the written statement is filed, the family court shall fix a date ordinarily of not more than thirty days for pre-trial hearing. The court shall examine the plaint, the written statement and documents which filed by the parties and shall hear the parties. At the pre-trial hearing, the court shall ascertain the point at issue between the parties and attempt to affect a compromise or reconciliation between the parties, if it is possible for the court. If no compromise is possible, the court shall frame the issue in the suit and fix a date for recording evidence.
A family court may hold the whole or any part of the proceeding under this Ordinance in camera under Section 11 of the Family Court Ordinance. Even where both the parties to the suit request the court to hold the proceeding in camera, the court shall do so.
In Section 13 of the said Ordinance it is mentioned that after the close of evidence of all parties, the family court shall make another effort to a compromise between the parties. If such compromise is not possible, the court shall pronounce judgment either or on some future day not exceeding seven days of which due notice shall be given to the parties of their agents or advocates and a decree shall follow the judgment The Family Court has been established in 15th June of 1985 under The Family Court Ordinance. First time mediation was introduced in family court in Dhaka Judge Court in 2000. After that it extended in Chittagong from 12th February of 2001, in Khulna from 1st September, 2001, in Rajshahi from 7th May, 2001. Afterward it expands all over the court of the country.
Mediation has been denoted in Family Court Ordinance, 1985 under Section 10, 11, and 13. And also compromise decree has been prescribed in Section 18 of the Family Court Ordinance.
As to the provision of the above Section of the Family Court Ordinance, when the written statement is filed, the family court shall fix a date ordinarily of not more than thirty days for pre-trial hearing. The court shall examine the plaint, the written statement and documents which filed by the parties and shall hear the parties. At the pre-trial hearing, the court shall ascertain the point at issue between the parties and attempt to effect a compromise or reconciliation between the parties, if it is possible for the court. If no compromise is possible, the court shall frame the issue in the suit and fix a date for recording evidence.
A family court may hold the whole or any part of the proceeding under this Ordinance in camera under Section 11 of the Family Court Ordinance. Even where both the parties to the suit request the court to hold the proceeding in camera, the court shall do so.
In Section 13 of the said Ordinance it is mentioned that after the close of evidence of all parties, the family court shall make another effort to a compromise between the parties. If such compromise is not possible, the court shall pronounce judgment either or on some future day not exceeding seven days of which due notice shall be given to the parties of their agents or advocates and a decree shall follow.
 

Arthorin Adalat Ain, 2003
As to the provision of the Section 21 of the Arthorin Adalat Ain, 2003, where the court deems proper may convene a settlement conference for settlement of dispute after submission of written statement by defendant in an alternative way keeping pending all proceeding of the court and the court may ask to the Parties, their lawyers and their representative to remain present in the settlement conference.
The Judge of the Artho Rin Adalat shall preside over such conference and hall determines the venue, procedure and function of the Settlement conference which shall take place in camera. The court shall explain the point of dispute before the parties, their lawyer and their representative and shall streamline his endeavors in arriving at a settlement but the court shall not exert any influence upon the parties to accept his own proposal. The process of settling the dispute shall be completed within 60 days of passing order by the court settling the dispute through Settlement Conference until the time is extended not exceeding 30 days on the basis of written statement of the disputed parties or the court own initiatives sufficient  cause being shown in the record.
The term and conditions of the settlement shall be recorded in agreement and the parties in dispute shall sign as executor, lawyers and the representative present shall sign over the agreement as witness[10]. Afterward the court shall pass an order or necessary decree under the provision of related rule of Order XXIII of the Code of Civil Procedure, 1908. Eventually, no appeal shall lie in the higher court against any order pronounced by the court through Settlement Conference under the provision of this Act.
Where no order has been given for settling the dispute through Settlement Conference according to Section 21, the court may keep pending all subsequent proceeding subject to the provision of Section 24 after submission of written by the defendant and may refer the case to lawyers or may send the dispute to the parties for settlement. The lawyers engaged for conducting the case may engage a lawyer who is not engaged by neither of the parties or may engage any retired judge or retired officer as arbitrator in the interest of settle the dispute on mutual consultation of the parties. The process of settling the dispute shall be completed within 60 days of passing order by the court settling the dispute through Settlement Conference until the time is extended not exceeding 30 days on the basis of written statement of the disputed parties or the court own initiatives sufficient  cause being shown in the record.
The arbitrator shall submit a report to the court on his arbitration activities without leaking out of the parties. The court shall give necessary order or pronounce decree on the basis of that report as may be applicable according to the relevant rules of Order XXIII of the Code of Civil Procedure, 1908.

The Bangladesh Labor Code, 2006
As to the provision of this code, where at any time an employer or a collective bargaining agent finds that an industrial dispute is likely to raise between the employer and the workers, the employer or the collective agent shall communicate his or its views in writing to the other party. Within 15 days from receiving its views, the party shall arrange a meeting with the other party for collective bargaining and settle the dispute.
Where the receiver of the letter fails to arrange a meeting within the prescribe period or no settlement can be reached within one month from the date of first meeting held for settlement of the dispute through the process of reciprocal dialogue of the both parties, the Government shall appoint as many persons as it considers necessary by the notification of official Gazette for the purpose of settle the dispute. Within 10 days of receipt of such request the conciliator shall start his conciliation and call a meeting of parties to the dispute for the purpose of bargaining about a settlement. The parties will open the issue of the dispute before the conciliator on the fixed date. If the settlement of dispute is arrived at in the course of conciliation, the conciliator shall send a report to the Government together with a memorandum of settlement signed by the parties.
If the conciliation fails, the conciliator shall try to persuade parties to agree to refer the dispute to an arbitrator for settlement. Where the parties do not agree to refer the dispute to an arbitrator for settlement the conciliator shall give a certificate to the parties within 3 days.
Where the parties agree to refer the dispute to an arbitrator, they shall make a joint request in writing for reference of dispute to an arbitrator agreed upon by the parties. The arbitrator shall give his award within a period of 30 days from the date on which the dispute is referred to him. After, he has made award the arbitrator shall forward to the parties and to the Government. The award of the Arbitrator shall be final and no appeal shall lie against it[11].


[1] Act IV of 2003.
[2] Akhtaruzzaman, Md., Concept and Laws on Alternative Dispute Resolution and Legal Aid, (70, University market, katabon, Dhaka, 2007), p.110.

[3] Paper presented by Mr. K. M. Hasan at National Workshop on “ ADR in quest of a new dimension in Civil Justice delivery system” on October 31, 2002.
[4] 14 (1994) BLD, 413
[5] 38 DLR, 140
[6] Obidul Haq Chowdhury, Hand Book of Muslim Family Laws, 5th ed., (Dhaka: Alfser Press, 1997), p.60
[7] Mir Abdul Halim, The Legal System of Bangladesh after Separation, 1st ed., (Dhaka: University Publication, 2008), p.188
[8] Akhtaruzzaman, Md., Concept and Laws on Alternative Dispute Resolution and Legal Aid, (70, University market, katabon, Dhaka, 2007), P.146.

[9] Halim, Md. Abdul, ADR in Bangladesh: Issues and Challenges, 2nd Edition (January, 2011), CCB Foundation, P.62.
[10] Khair, Sumaiya, Legal Empowerment for the Poor and Disadvantaged: Strategies Achievements and Challenges, (Colorline, Dhaka.2008), P.283

[11] Akhtaruzzaman, Md., Concept and Laws on Alternative Dispute Resolution and Legal Aid, (70, University market, katabon, Dhaka, 2007), P.208.
 

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