연구보고서
Ⅰ. Background and Purpose
□ The significance of the study of commercial arbitration especially international commercial arbitration lies in the fact that, in the contemporary world of changing dimensions it has become a sophisticated mechanism for consensually dealing with international disputes. International commercial arbitration being a consensual means of dispute resolution, it has the binding effect only by virtue of complex framework of national and international law including the national arbitration laws, international conventions and institutional arbitrations. This legal arena enhances the enforceability of both arbitration agreements and arbitral awards. It seeks to insulate the arbitral process from undue interference from the national courts.
□ In the recent past and especially in the last two decades, there has been a tremendous explosion in the number of cases being settled through arbitration and similar mechanisms in Asia. At the same time such an attempt is threatened by the lack of effective legal framework in some of these countries, which might affect the economic and commercial growth and investment in them.
□ The research study is confined to a comparative analysis of the international commercial arbitration laws of selected South Asian countries like, India, Bangladesh, Pakistan, Nepal and Sri Lanka. The main focus of this study is identifying various problem areas in the commercial arbitration law in those South Asia countries so that suitable changes and improvements may be suggested.
Ⅱ. Main Contents
□ Firstly, the concept, evolution and the scope of the practice of international commercial arbitration and issues like important principles, procedures and interpretations of international commercial arbitration laws in resolving commercial disputes, would be discussed in the introductory chapter. The primary focus would be the need for Asian countries to have a strong and effective international commercial arbitration law. In addition, an attempt would be made to examine as to what change it would make in the development and welfare of countries in South Asia.
□ Sec.ondly, laws of countries like, India, Bangladesh, Pakistan, Nepal and Sri Lanka would be examined. Looking at South Asia’s potential for international trade, it is prudent to conduct an in-depth analysis of the law of international commercial arbitration laws in these countries to understand the law and practice.
□ Thirdly, it would analyze the differences and similarities exist amongst various countries in South Asia. In the light of the existing areas of concurrences and contradictions, an attempt would be made to understand the philosophical and practical underpinnings in the law and development of international commercial arbitration practice in these countries.
□ Finally, last chapter would contain the important observations carved out during the study. The issues specific to each jurisdiction would be examined independently. The key issues and challenges in the unification of arbitration laws in South Asia would be assessed in detail and possible solutions would be suggested.
Ⅲ. Expected Effect
□ Lack of effective commercial dispute resolution policies and laws in various Asian countries has affected the economic and commercial growth and impinges investment in them. In this context, it is much necessary to study the limitations of dispute resolution policies and laws from a comparative perspective. Once the problems in each legal system stand identified, improvements could be made through appropriate changes in the policies and amendments in the domestic laws.
□ The aim of this research would be to analyze the arbitration laws in the countries in South Asia. Eventually, in a comparative perspective, the solutions for the existing problems in these jurisdictions would be suggested.
□ It could provide first hand information regarding the dispute resolution mechanism of commercial disputes in the South Asia.
Chapter 1: General Introduction 11
Section 1. Scope of Arbitration in Resolving International Trade Disputes 12
Section 2. Concept of Arbitration 13
Section 3. Evolution of the Law of International Commercial Arbitration 18
Section 4. Fundamental Principles of International Commercial Arbitration 20
Chapter 2: International Commercial Arbitration Law in South Asia 33
Section 1. Introduction 33
Section 2. Commercial Arbitration Law in India 33
Section 3. Commercial Arbitration Law in Bangladesh 49
Section 4. Commercial Arbitration Law in Nepal 67
Section 5. Commercial Arbitration Law in Sri Lanka 77
Section 6. Arbitration Law in Pakistan 84
Chapter 3: Comparative Analysis of International Commercial Arbitration Law in South Asia 95
Section 1. Introduction 95
Section 2. Recent Developments 95
Section 3. Appointment of Arbitrators 96
Section 4. Procedural Justice 101
Chapter 4: Conclusion 113
References 121
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