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Necessity of commercial court in Bangladesh 

Published : Friday, 7 February, 2025 at 12:00 AM  Count : 667
MS Siddiqui
Concluding part

The Commercial Court was set up in 1895 following demands from the City of London and the business community for a tribunal or court manned by judges with knowledge and experience of commercial disputes which could determine such disputes expeditiously and economically, thereby avoiding tediously long and expensive trials with verdicts given by judges or juries unfamiliar with business practices. Judges are drawn from a list of those authorised due to their specialist knowledge and expertise. This Commercial Court is a sub-division of the Queen's Bench Division of the High Court of Justice, the major civil court in England and Wales. It is the world's largest dedicated business dispute resolution centre.The Commercial Court is a specialist subsection of the Queen's Bench Division alongside courts including the Admiralty Court and Technology and Construction Court, as defined by the Civil Procedure Rules. It deals with complex cases arising out of business disputes, both national and international. It is also the principal supervisory court for London arbitration disputes.
Recently India has adopted a similar approach in order to improve their legal system's effectiveness vis-�-vis enforcement of business contracts. The Commercial Courts Act, 2015 in India passed in 2015. The Act aims to expedite resolution of commercial disputes and improve the overall efficacy of doing business in India. The Act made provisions for the institution of special commercial courts/divisions to decide commercial disputes in an expedient and time bound manner. The Act directed the disputing parties to undergo mandatory mediation for 3 months (extendable by 2 months with parties' consent) before they can institute a commercial suit under the Act.
India also amended the existing Code of Civil Procedure 1908 to improve the efficiency and expeditious disposal of commercial cases. The most important amendment requires filing of all documents relevant to the dispute at the time of filing of the suit itself or at the time of filing of the defense, as the case may be. This is because the said Act acknowledges that piece meal production of documents by parties at different stages tends to delay proceedings.

The pre-institution mediation would have to be as per the procedure laid down by rules formulated by the central government. If any settlement is executed pursuant to such mediation, it will have the same status and enforceability as an arbitral award arrived at by settlement between two arbitrating parties.

Bangladesh is part of the common law jurisdiction. The legal system of Bangladesh has its roots in the laws of British introduced in South Asia.Many of the basic laws of Bangladesh such as penal code, civil and criminal procedural codes, contract law and company law are influenced by English common laws. But there is no special court system.

In Bangladesh, there is a Single Bench in Hon'ble High Court Division of Supreme Court of Bangladesh dealing with Admiralty matters. The jurisdiction of the said Honorable Court is limited to any claim mostly related to ship and it does not cover claim entirely based on import & export of goods, international trade related dispute etc.

At present any claim of payment for failure to pay on maturity date, claim arising under lose or damage of goods, short supply of goods, payment of freight of the carrier are required to be recovered by filing money suit in the Joint District Judges Court or court below. The same Courts also deal with Artho Rin matters; title related disputes, general contractual claims, land related matters etc, resulting in huge pile up of litigations with extremely slow progress rate. Generally, from filling till first hand judgment, a litigator is required to wait from two to six years in commercial matters.

Trade related disputes are mostly based on documents. There is hardly any need for witness's statement, accordingly those can be tried summarily based on documents submitted in evidence under affidavit. The same practice is already in place with regard to writ jurisdiction of Hon'ble High Court Division and also with Company Bench of the same division.

The court and the judges require expert knowledge and experience of commercial disputes in international and local trade related laws, carriage related laws, international convention, INCO terms, uniform practice rules etc. It is highly unlikely the Court with so many jurisdictions or powers will be able to develop expertise in such area. Accordingly, in order to expedite the disposal of commercial disputes and claim, it is required that a special commercial court.

The Commercial Court rules permit the judge to adjourn proceedings to enable the parties considers whether the proceedings ought to be referred to a process of mediation, conciliation or arbitration. The Court may not direct parties to submit to an alternative form of dispute resolution. Instead where the judge identifies that an alternative route might be considered by the parties, he can facilitate that option by permitting the adjournment of proceedings. Although participation is not mandatory, there may be cost implications if one of the parties adopts an unreasonable or obstructive position in the context of considering these alternatives.

The Law Commission-Bangladesh has taken a move to establish commercial courts aiming to attract foreign direct investment (FDI) for resolving disputes on trade, commerce and banking promptly as disclosed by Chairman, Law Commission in May 2018.Bangladesh should immediately have a law for Commercial court and also amend the code of civil procedure to incorporate the provision for speedy and professional handling of commercial disputes. Such law can make provisions for the institution of special commercial courts to decide commercial disputes in an expedient and time bound manner.

The writer is a Former Non-Government Adviser, Bangladesh Competition Commission, Legal Economist & CEO, Bangla Chemical


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