DISSIMILARITIES IN ARBITRATION LAWS
IN DIFFERENT SAARC COUNTRIES.
Under Arbitration Act 1940 (Pakistan) an award is required to be made rule of court from the court. But under Arbitration and Conciliation. Act 1996 of India an award is executable as a decree of Civil Court.
Under Arbitration and Conciliation Act, 1996 (India) Arbitrator has power to pass interim orders but no such power exists in Arbitration Act 1940 (Pakistan).
There is less scope of judicial interference in the Arbitration and Conciliation Act, 1996 (India) than the Arbitration Act 1940 (Pakistan).
In Indian and Sri Lanka arbitration laws there are provisions of confidentiality. But no such provision is available in Pakistani law.
There is no clue how an award in Sri Lanka is to be executed as there is no intervention of court.
In the Sri Lanka law of arbitration time limit has been provided for certain process but no such provision is available in Indian, Pakistani or Bangladesh laws.
1996 Act of India is applicable to both International and domestic arbitrations. But no such provision exists in Pakistani law.
There is a trend of fast track arbitration in the Indian Act 1996. The Arbitration and Conciliation (amendment) Act 2003, yet to be passed by the Parliament of India, proposes to introduce a single member fast track arbitral tribunal. There is no such provision in Pakistan law.
In the Act of 1996 (India) an award is normally challenged on the ground that it violates public policy as it has specifically been provided that no judicial authority shall intervene except where so provided. But in Pakistan an award has to be made rule of court by the court.
The Act of 1996 (India) insulates arbitration proceedings against judicial interference. Such a provision is not available in Pakistan law.
Section 34 of the Act 1996 (India) makes a mere challenge to an award operate as an automatic stay even without an order of the court. There is no such automatic stay in the Act of 1940 which is in field in Pakistan.
Under Section 36 of the 1996 Act an arbitral award is enforceable as a decree of the court and could be executed like a decree in a suit under the provisions of CPC. No such provision is available in Pakistani law.
An international commercial award is also executable under 1996 Act (India). No such provision exists in the law which is in field in Pakistan.
1996 Act confers powers on arbitral tribunals to issue interim reliefs pertaining to: (a) protection of subject matter in dispute; and (b) providing appropriate security in connection therewith. But tribunal has no mechanism to enforce its orders. So it is toothless and spineless. But in any event such a provision is not available in the Pakistani law.
The Arbitration Act 2056 (1999) Nepal is largely at variance with Arbitration Laws of India, Pakistan and Bangladesh. Unlike these laws the law of Nepal provides for filing of rejoinder.
There is provision for Chief Arbitrator who in certain cases tilts the scale of justice. No such provision is available in the arbitration laws of India and Pakistan.
The Law of Nepal unlike other laws provides for a time frame for every step in the Arbitration Proceedings.
In contrast to Indian law of Arbitration of 1996 the law of Nepal is under strict interpretation of courts as arbitrators are appointed by the courts, interim orders and final awards of arbitral tribunal are appealable before court. Such awards are filed in the court and enforced by the courts.
According to the law of arbitration of Nepal arbitrators are required to make oath. There are specific grounds under which they may be removed and also the grounds on which their awards may be set aside. There is provision that proceedings of arbitration will continue in the absence of one arbitrator but final decision shall not be made. There is no such provision in other SAARC countries' laws.
Unlike other SAARC countries laws proceedings of arbitration under Nepali law are held in camera.
There is also provision for demanding bank guarantee under Nepali law which is absent in other SAARC countries' laws. Arbitrators can issue attested copies of documents.
Unlike other SAARC countries laws arbitrators in Nepal can seek assistance from the court to record any evidence concerning the dispute.
In Nepali law of arbitration decisions are made on majority basis. But if there is no majority the decision of the Chief arbitrator will prevail. There is no such provision in Indian or Pakistani laws.
Under Nepalin law of arbitration arbitrators are empowered to correct errors in the award.
In the remaining matters of arbitration the jurisdiction of court has been barred under Nepalian law of arbitration.
In Maldives a party interested in having recourse to arbitration may apply to Secretariat. Such a provision is not available in other countries' laws.
Unlike other countries law on arbitration in Maldives respondent may submit counter claims.
In the Maldives law of arbitration it is for the court to decide whether there existed arbitration agreement and as such arbitral tribunal had the necessary jurisdiction. Such a provision is not available in Pakistani and Indian laws of arbitrations.
According to Maldives law of Arbitration a dispute is to be settled by a sole or three arbitrators. Both parties nominate one arbitrator each and third one which is Chairman of the Arbitral tribunal is appointed by the court.
Unlike other laws challenge to arbitrator in Maldives will be made to the Secretariat and then will be decided by the court.
Unlike other laws in Maldives arbitral tribunal will draw terms of reference which will have to be approved by the court.
Unlike other laws there is also provision for provisional time table in Maldive laws.
Unlike other laws there is provision for protecting trade secrets and confidential information in the Maldives laws.
Like Indian law and unlike Pakistani law there is provision for conservatory and interim measures.
Unlike other countries laws in Maldives the award is to be made by majority and in the absence of majority by Chairman of the Arbitral Tribunal alone.
Unlike other countries laws in Maldives the draft of the arbitration award is to be submitted to the court which may lay down modification as to the form of the award and may draw its attention to its substance.
Arbitral Tribunal in Maldives can correct its errors but the same will have to be reapproved by the court.
An award in Maldives is binding on the parties.
Commercial Arbitration Law of Afghanistan deals both with domestic and International law. But court or Government agencies cannot intervene in the arbitration proceedings except as provided by law.
Unlike Pakistan law on arbitration in the arbitration law of Afghanistan certain qualifications have been prescribed for arbitrators and they are to be registered with central registry.
Unlike Pakistani law on arbitration there is a provision of ad-interim relief in the Afghanistan law.
Unlike Pakistani law in Afghanistan parties are free to determine the number of arbitrators but if they do not agree the number shall be one. But if State is a party the number shall be three.
Unlike other countries laws on arbitration in Afghanistan parties will appoint one arbitrator each and the two arbitrators so appointed will appoint the third one.
Unlike Pakistani law appointment of an arbitrator can be challenged in Afghanistan on the ground of impartiality and qualification. But this has first to be raised before the arbitral tribunal itself.
Unlike arbitration laws of other countries in Afghanistan Arbitral Tribunal may appoint one or more experts.
Unlike Pakistani law on arbitration Arbitral Tribunal in Afghanistan may request relevant document and evidence from a court.
Unlike other countries law in Afghanistan parties are free to appoint a third party as a mediator.
In Afghanistan decision of the arbitral tribunal shall be by majority. This is dissimilar from Pakistan.
Unlike other countries laws on arbitration Arbitral Tribunal has power to correct its errors.
Unlike arbitration law in India an arbitral award may be set aside by a court.
Unlike Indian law an application has to be made to the court for the enforcement of Award in Afghanistan.
In Bhuttan a neutral arbitrator is selected and empowered to resolve disputes.
Unlike other countries of SAARC arbitration awards in Bhuttan are either binding or non binding in nature. Binding awards are like judgments of courts.
Unlike other countries laws on arbitration award in Bhuttan cannot be reviewed and there cannot be appeal from the decision of arbitrator's decision.
If an agreement does not contain a provision for arbitration, under Bhuttan law, matter can be referred to arbitrator by mutual agreement.
Bangladesh is governed by Arbitration Act, 2001.
Unlike other countries laws on arbitration in Bangladesh in case of failure of the parties, to appoint an arbitrator, on the request of any of the parties District Judge will appoint arbitrator in case of domestic Arbitration and Chief Justice of Supreme Court of his nominated person in case of international arbitration. In case of three arbitrators two will be appointed by both parties each and third by the two arbitrators so appointed. In case parties fail to appoint third arbitrator the same shall be appointed by the court who will be Chairman of the arbitral tribunal.
Unlike other countries laws on arbitration in Bangladesh an arbitral tribunal may apply to the court for issuing a summons upon any person for witness purposes and the court shall issue such summons.
Unlike Pakistani law on arbitration in Bangladesh interim orders can be passed by arbitral tribunal.
In Bangladesh an award may be made by majority.
Bangladesh is signatory to Newyork convention on the recognition and enforcement of Foreign Arbitral Award 1958 but has not yet formally ratified it. But foreign award in Bangladesh is enforced through execution by the court in the same manner as if it were a decree of the court.