We become very serious and tensed up at the hint of any contestation or potential conflict, especially that which concerns money matters. Being caught up in an exchange of knee-jerk reactions we may threaten legal action against one another vowing to go to the court. On a fretting and fuming mode we tend to be completely oblivious of any peaceable alternative means to resolve disputes. Although alternative option is hugely cost-saving and much less time-consuming than taking recourse to legal remedy conjuring up an expensive and procrastinating process, we seldom go in for the former. We either regard it as being 'informal' to the point of being non-serious or look upon it as something of a transitory solution.
The result is crippling backlog of more than fifty-five thousand cases pending with the Artho Rin Adalot (loan courts) as of June 2017. At the same time around 2.8 million cases await disposal at the lower courts of the country. Giving those statistics, Mr. Mahbubur Rahman, chairman of the Association of Bankers suggested redefining the term Adalot by way of recognizing 'arbitration' as a standard means of dispute resolution. Simultaneously, he proposed that pre-litigation mediation should be conducted by a neutral third party institution like the Bangladesh International Arbitration Centre (BIAC) 'having a thorough understanding of the process'.
The prefix 'international' to BIAC's nomenclature makes it a broad spectrum platform encompassing, one would have thought, national and international parameters. It may be asserted that charity must begin at home, so be it with arbitration.
A much-needed roundtable was organized by the Bangladesh International Arbitration Centre (BIAC), headed by Mahbubur Rahman, last Sunday. The theme, 'Creating Investment-friendly Access: Can ADR be an Effective Remedy in Commercial Disputes' couldn't have been more timely, although the issues that were deliberated upon will have to be unpacked to make a coherent sense. The package of recommendations will have to be clear-cut before it is implemented.
We need to be alive to the fact that some structural and content-wise embellishments will have to be incorporated through a focused reform process.
Kazi M Aminul Islam, Executive Chairman of Bangladesh Investment Development Authority (BIDA) flagged concerns over a huge backlog of cases not only costing time and money but also affecting foreign direct investment in the country.
Hence he observed that Arbitration Act 2001 should be amended to limit court intervention and to improve enforcement of arbitral awards to 'weather the worsening situation.'
Margub Kabir in his keynote address pointed out that 'mandatory provision for mediation comes into play after a party institutes litigation and the defending party appears in the litigation and files written statement'. He then makes a compelling argument that 'by the time the parties having already instituted legal proceeding before the court feel less interested to settle it by ADR'.
In the UK and USA provisions are included in the law to ensure that parties try to settle the matter through the ADR before they move to the court.
Such a push factor needs to be incorporated into the arbitration law to make it worthwhile.
