BHUTAN TODAY The New Perspective
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Bhutan Alternative Dispute Resolution Centre (Bhutan ADRC) since its establishment, it has received and administered mostly arbitration related to construction disputes.
As per the report Bhutan Alternative Dispute Resolution (ADR) Centre 2022, “The Centre has received 191 total cases in five years and highest being at 45 in 2019 and lowest being 32 in 2018. The total cases mean whatever cases the Centre has received, including withdrawals and dismissals cases.”
Centre administers all kinds of commercial arbitrations, domestic as well international, be it between the private parties or be it between government agencies and private parties. So far, in five years the Centre has administered arbitration mostly between the government agencies and private contractors. In five years, the Centre has administered only eight arbitrations between the private parties.
All parties to arbitration have the right to withdraw their case. In total there were 24 withdrawals; the highest withdrawal was in 2020 with 14 cases. All withdrawals took place after the payment of nonrefundable fees but before the constitutions of the arbitral tribunal. Parties withdraw cases mainly due to internal settlement and difficulty in locating parties. In some cases, parties refused to respond to the notice of arbitration.
Centre being facilitator does not have any authority to dismiss arbitration referred to the Centre. Only an arbitral tribunal has authority to dismiss the arbitration. Only 3 cases were dismissed in five years. Arbitral tribunal dismissed cases due to lack of jurisdiction to arbitrate and presence of criminal element in the dispute.
All arbitrations referred to the Centre were mostly related to construction disputes. Construction related disputes are grouped under eight categories (Bill related disputes; Termination; Bill of Quantities (BoQ), Price & rate description disputes; Ideal charges and ratification; LD and Time extension; Deviation; property lease; Buy and sell of flat) and it does not include subject matters of disputes which were either dismissed or withdrawn in the respective years. In five years, Centre has administered highest disputes on termination of contract, which is 47 disputes and lowest disputes were on property lease and transaction of flat.
Under the Bhutan ADR Act 2013, any aggrieved party can seek recourse against the decision of arbitral tribunal to High Court. Unlike in litigation, in arbitration parties can appeal to set aside the award only on limited grounds, which are provided under section 150 of Bhutan ADR Act, 2013. Of 191 disputes received in five years, the Centre has handled 141 disputes. Highest was handled in 2019 with 41 awards followed by 2020 with 36 awards. However, only 14 awards were appealed in 2020 and 13 in 2022 and 2021 to the High Court.
In 2022, there were in total 57 pending cases, 40 new cases and 17 carried forward from 2021. Of 57 cases, 23 are pending and carried forward to 2023. The cases received by Centre for arbitration, which were in the proceeding stage and not disposed of in the respective years. It means that pending at the end of every year after deciding the new cases received in the year as well as pending carried forward from the previous year.
However, the turnaround time on average for dissolution of disputes through arbitration from the date of receipt of notification until the day of award. On average, highest time was 9.3 months in 2021 and lowest was 4.5 months in 2022.
In the last five years, Centre has received 191 cases for arbitration, which has, in total, a sum of Nu. 4,724,827,289 in dispute. In terms of annual aggregate, 2022 has the highest sum in dispute with Nu. 2,124,198,543 and 2021 has the lowest sum in dispute with Nu. 211,609,559.
In the last five years, Centre did not receive any particular case specifically referred for mediation. However, in the midst of arbitral proceedings, in two cases, the parties opted for settlement and the arbitral tribunal issued the same settlement agreements as the arbitral award.
One of functions of the Centre is to liaise the Centre with international ADR bodies. In line with this function, for exchanging the expertise and knowledge in the field of arbitration and mediation, the Centre has negotiated a Memorandum of Understanding (MoU) with Bangladesh International Arbitration Centre. Centre is in the process of seeking governmentโs review and approval of MoU.
\Bhutan Alternative Dispute Resolution Centre (Bhutan ADRC) was established and started functioning from May 15, 2018, and it defines as an independent body, having a distinct legal personality, and capable of handling all commercial related disputes through arbitration and negotiation. Bhutan is 151 states party in the New York Convention”.
