Once an arbitration agreement is entered into for submitting future differences to arbitration, it is not, necessary to obtain the fresh consent of all the parties for a reference to arbitration at the time when the dispute actually arises. Under the Act of 1940, an arbitration agreement must be in writing, though it need not be registered.This also amounts to an “arbitration agreement” for the purposes of the Arbitration Act, 1940. Three types of arbitration are contemplated by the Arbitration Act of 1940, namely (i) Arbitration in the course of a suit, (ii) Arbitration with the intervention of the court, and (iii) Arbitration otherwise than in the course of a suit and without the intervention of the court in practice, the last category attracts the maximum number of cases. There are also stray provisions as to arbitration, scattered in special Acts. In Bangladesh, the present law of arbitration is contained mainly in the Arbitration Act, 1940, there being separate Acts dealing with the enforcement of foreign awards.
It is observed from regular business of court that the banks have been refraining from taking any step against the stay orders in writ petitions. He told that the banks cannot recover the loans due to stay orders from the court, and asked the monitoring cells of banks to take up these issues seriously and hire efficient lawyers to move the cases of loan default.The Daily Star dated June 2, 2006). In a recent discussion on “Money Loan Court Act 2003” organized by the Association of Bankers, Bangladesh (ABB), the Governor of Bangladesh Bank asked the banks to take special measures to recover bad loans as the defaulters filed 1,768 writ petitions in the High Court for such loans amounting to Tk 6445 core. In spite of that the defaulter(s)/borrower(s) is/are challenging the same in the writ jurisdiction of the High Court Division under Article 102 of the Constitution of the People’s Republic of Bangladesh and obtaining stay orders from the High Court Division. Section 20 of the law has given finality to the order, judgment and decree of the Adalat. This anomaly should be removed by inserting appropriate provision.
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By The Code of Civil Procedure (Amendment) Act, 2003 two new sections were incorporated (section 89A, 89B) in the code. The provisions have been made in this regard that the court can mediate the suit matter after filing the written statement by the defendant or defendants, by adjourning the subsequent procedures of the suit The government by amending the Code of Civil Procedure expands the avenue for shalishi. Similarly, the term ‘settlement conference’ has been used to denote mediation process in the part V of Artha Rin Adalat. No 4 of 1990) after filing of written statement, if all the contesting parties are in attendance in the court in person or by their respective pleaders, the court many by adjourning the hearing, mediate in order to settle the dispute or disputes in the suit or refer the dispute or disputes in the suit to the engaged pleaders of the parties, or the party or parties, where no pleader or pleaders have been engaged, or to a mediator form the panel as may be prepared by the District Judge under subsection 10, for undertaking efforts for settlement through mediation. Section 89A lays down that except in a suit under the Artha Rin Adalat Ain, 1990 (Act. 4 Laws pertaining to ADR in Bangladesh: a) Code of Civil Procedure,1908 For the first time in our legal system the provision with regard to ADR has been introduced by amending the Code of Civil Procedure. 3 “Med-Arb” is a procedure which combines, sequentially, conciliation/mediation and where the dispute is not settled through conciliation/mediation within a period of time agreed in advance by the parties, arbitration. 2 “Negotiation” is a non-binding procedure in which discussions between the parties are initiated without the intervention of any third party with the object of arriving at a negotiated settlement of the dispute. 1 Arbitration” means a process of adjudication of a dispute or controversy on fact or law or both outside the ordinary civil courts, by one or more persons to whom the parties who are at issue refer the matter for decision. Mediation” is voluntary process where a natural mediator attempts to help the disputing parties to reach an agreement that is acceptable to both sides and that will bring the dispute to an early conclusion without having to go to Court.
Means Alternative Dispute Resolution, mostly applied to civil cases. ADR IS CIVIL JUSTICE SYSTEM IN BANGLADESH Introduction: Disputes are a fact of life.