Introduction:
Adopting the new technological development, Bangladesh had opened up its telecommunication sector for mobile phone services during 1990s. The first mobile phone license was issued in 1989 and five more licenses were issued subsequently during 1996-2006. Since the inception of the mobile phone services, the sector had been suffering from many drawbacks: low-level of investment, limited capacity to meet growing demand, poor service quality and high tariff. To regulate and to improve the telecommunication sector, the Telecommunication Act was enacted in 2001. Under this Act, the Bangladesh Telecommunication Regulatory Commission (the Commission) was established for the purpose of development and efficient management of telecommunication system and telecommunication services in Bangladesh. The Commission will act independently within the powers conferred by the Act of 2001. However, the present article will show that in many instances, the Commission has failed to comply with the legal procedures enshrined in the Act and resultantly, the actions of the Commission have been challenged by the mobile phone operators before the apex Court of the country. After examining the relevant judgements of the Supreme Court, it becomes clear that the Commission acted unreasonably and arbitrarily in imposing administrative fine as well as amending the conditions of the license which actually portray the Commission’s inability to uphold the interests of the mobile phone operators. In this connection, the article delineates the objectives, composition, powers and functions of the commission. Finally, recommendations have been given to take a decision by the Commission following the cardinal principles of the statutory interpretations and implementing the manifestation of the will of the legislature for ensuring the competitive and innovative mobile telecommunication sector in Bangladesh.
Establishment and Composition of the BTRC:
The Bangladesh Telecommunication Regulatory Commission has been established under section 6 of the Telecommunication Act, 2001 with a view to encouraging the orderly development of a telecommunication system that enhances and strengthens the social and economic welfare of Bangladesh. In addition, the Commission will try to ensure access to reliable, reasonably priced and modern telecommunication services and internet services for the greatest number of people keeping in mind that prevalent social and economic realities of Bangladesh. Moreover, the Commission will pave the way to make efficient national telecommunication system and its capability to compete in both the national and international spheres. To ensure competitive market system, the Commission will eliminate discriminatory practices and also create a favourable environment for local and foreign investors who intend to invest in the telecommunication sector.
The Commission shall consist of 5 (five) commissioners, and the Government shall appoint one of them to be the Chairman and another to be the Vice-Chairman. At least two of the Commissioners shall be engineers having at least 15 (fifteen) years’ practical experience in the field of telecommunicationand at least one shall be an advocate or a judge having 15 (fifteen) years’ practical experience in law including the qualification for appointment of a judge of the High Court Division. And another shall be a person having 15 (fifteen ) years’ practical experience in business or industry or finance or economic or protection of consumer interest or management or administration. In addition, law specifies who cannot be qualified for appointment to, or for holding, the office of the Commissioner. Any Commissioner may resign from his office by sending to the Government a written notice of three months and a copy thereof to the Chairman or, where the Chairman himself resigns to the Vice-Chairman. Moreover, the government may remove a commissioner from the office if any situation occurs specified in section 10(2) or if he is found guilty of corruption, misuse of power, gross misconduct or gross negligence in duty. To remove a commissioner, the Government shall constitute an Enquiry Committee consisting of one or more judges of the Supreme Court and shall also specify the time limit for submission of the enquiry report. The Chief executive of the Commission shall be the Chairman and where the Chairman is unable to perform the functions of his office due to resignation, removal, absence, illness or any other cause, the Vice-Chairman shall be competent to exercise all the powers and perform all the functions and duties of the Chairman. Where both the Chairman and Vice-Chairman are unable to perform their functions and duties, the Government may direct a Commissioner to temporarily act as the Chairman. All meetings of the Commission shall be presided over by the Chairman and in his absence the Vice-Chairman. A decision of the Commission shall be taken in accordance with the majority votes of the Commissioners present in the meeting and in case of equality of votes, the person presiding shall have a second or casting vote. When a decision to be taken on a specific issue, any two commissioners may request the Chairman to call a meeting in written form and the Chairman shall call a meeting within 7 (seven) days of receiving of such notice.
Functions and powers of the BTRC:
The main function of the BTRC is to regulate and maintain the telecommunication services in Bangladesh. To protect the interest of the local consumer in respect of the charges and to ensure the quality and variety of services are the duties conferred upon the BTRC by the Act. In order to protect the competitive environment in the telecommunication sector, the commission plays the vital role by preventing oppressive and discriminatory activities. The Commission will encourage research and development activities to promote high-quality telecommunication services. The Commission will implement the guidelines relating to internet domain name and can initiate modification, amendment of the guideline if feels necessary. Moreover, the Commission will have the power to settle the dispute concerning the internet domain name. The commission can frame the code of practice for the local operators and to maintain the relationship with foreign operators. To maintain liaison with the International telecommunication union and other international organisations dealing with the standards of the telecommunication services can be another important aspect of the functions of the BTRC. In addition, the BTRC will collect information about the regional and international conferences on telecommunication and to represent in those conferences through delegates. One of the most important function of the BTRC is to uphold the public interest by suppressing unfair practices of the operators and to arrange public hearing on matters of public interest. The Commission will set the standard and criteria of telecommunication services and to monitor that the operators are complying with the standard in providing services The powers of the Commission include: the authority to issue license for telecommunication service, issuance of permit or technical feasibility certificate, control and deferment of the feasibility of the license, allotment of radio frequency and power to monitor the usage and spectrum management; to collect revenue, control of transmission, postponement and cancellation of the permit and certificate. The Commission will receive complaint if there is any contravention of the Act, regulation or license permit and can conduct inquiry about the complaint. In addition, the Commission can direct the operator to submit the annual plan of expenditure to analyse and assess whether any monopoly has been taken place in the telecommunication services. If any dispute arises among the license holders, and they fail to resolve the conflict among them, in this case, the commission may arbitrate to settle the dispute which shall be final for the parties.
Amendment of the License Non-complying with the Statutory Procedure:
The Commission will have the right to amend, add and substitute any terms of the license issued under the Telecommunication Act, 2001, after getting prior approval from the Government. So, the Commission after being directed by the Government can amend the conditions of the license and such amendment can be brought following the procedure enshrined in sub-section 2 of the Section 39. Before initiating any amendment, the BTRC will issue a written notice upon the license holder giving 15 (fifteen) days to respond in writing about the proposed amendment. The Commission will take decision considering such written statement of the licensee.
In 2011, the BTRC issued a Guideline titled ‘Cellular Mobile Phone Operator Regulatory and Licensing Guideline, 2011’. By this guideline, new fees were introduced as license renewal fee, new assignment fee, etc. Under clause 8.01(ii) new spectrum assignment fee of Tk. 150 crore per MHz was fixed. By the same clause, new fee or charges named ‘Market Competition Factors’ - MCF based on market share of the operators was introduced and the Commission claimed Spectrum Assignment Fee from the Grameen Phone based on the said MCF which related to the already assigned Spectrum (7.4 MHz – 1800 band) in 2008. This kind of change by imposing additional charge on the spectrum of 2008 may be done after complying with the provisions of notice as mandated by section 39(2). On the basis of the Guidelines, the BTRC amended the license imposing MCF without serving such notice and no negotiation or agreement was taken place between the parties. It was held in the Grameen Phone Ltd. Vs. Bangladesh Telecommunication Regulatory Commission (Spl. Org.) that imposing MCF in respect of 7.4 in 1800 MHz assigned in 2008 to Grameen Phone was not complying with the provisions of section 39(2) of the Telecommunication Act, 2001 and suffers from serious ‘unreasonableness’. As a result, the court declared such imposition of MCF was without lawful authority having no legal effect. Consequently, the Grameen Phone was not required to pay the enhanced rate of Spectrum fee on the basis of the Guideline.
Arbitrary Imposition of Administrative fine by the BTRC :
As a regulatory body, the BTRC (the Commission) has the right to impose an administrative fee if a licensee or the holder of a certificate or permit violates any provision of the Telecommunication Act, 2001 (the Act) or regulations or any condition of the license or permit in operating a system or in providing a service. In addition, the Commission can also impose such an administrative fee if the licensee obtained such license or permit or technical acceptance certificate by furnishing a false information. In case of violation of the provisions of the Act or the condition of the license or the licensee submitted any false information, the Commission may show cause the violator within 30 (Thirty) days. If the violators failed to comply with the corrective or remedial measures directed by the Commission or failed to give reply or a satisfactory explanation about the cause of violation, then the commission may impose upon the violator an administrative fine not exceeding 300 crore taka and if the violation continues after the issuance of the order, an additional administrative fine not exceeding one crore taka for each day. Moreover, the commission can also suspend or cancel the license, permit or certificate or impose additional conditions.
The Act empowers the Commission to make regulation for imposition of the administrative fine for the violations of the provisions of the Act or regulation. Under section 65 of the Act, if the Commission imposes any administrative fine, it becomes obligatory upon the commission to serve on the violator a notice depicting the opportunity of the violator to admit the violation, deposit administrative fine specified in the notice and thus get himself discharged from the liability and the violator may also explain his position in this regard. Before imposition of such fine, the Commission shall determine the nature of the offence and amount of loss. When a violation noticed by the Commission, an Inspector on behalf of the Commission shall fill up a prescribed notice specifying therein the relevant facts and put his signature therein and shall serve the notice personally to the violator or he shall send the notice to the last known address of the residence or work place of the violator.
The inspector must specify three things in the notice, first, the various aspects considered in respect of the alleged violation, second, the procedure to be followed and third, the amount of administrative fine that may be imposed. After receiving the notice, the violator will have the following options:
a) To admit the violation and pay the administrative fee within the time specified in the notice;
b) To admit the violation and request for reducing the said fine by explaining the circumstances in which the violation took place, within the time specified in the notice; or
c) Deny the violation and in support of such denial furnish the explanation and necessary information and request for discharge from the liability of the proposed fine to the Commission within the time specified in the notice.
When such application has been received by the Commission from the violator either for reduction of fine or for discharge from the liability, the concerned officer shall consider the matter as a whole and record his decision along with reasons and shall within 3 (three) days of the decision, deliver to the applicant a copy thereof. The violator may apply for review of the decision within 15 (fifteen) days of getting the decision. After receiving the review application, the commission has to dispose of the matter within 30 (thirty) days giving the applicant a reasonable opportunity of being heard. Thus, the interrelationship between sections 63 and 65 of the Act identified by the petitioner in the Grameen Phone Limited vs Bangladesh Telecommunication Regulatory Commission (BTRC) & Ors. in the following words:“
d) To ascertain whether or not a violation under the Act has occurred, BTRC can issue a show cause notice under section 63(1) upon a suspected violator.
e) If the suspected violator gives unsatisfactory reply to the show cause notice, then section 63(3) allows the BTRC to impose a fine within the prescribed limit.
f) Once BTRC decides to impose a fine on the violator under section 63, BTRC then would determine the fine under section 65(2) by keeping the nature of offence and the amount of loss in mind.
g) BTRC would then issue a notice under section 65(2) to the violator stating the amount of the fine and would ask the violator to pay such fine within a prescribed time limit.”
As a regulatory body, BTRC will have to pay due attention to the intention of the legislature at the time taking any decision. So, they will have to consider the rules of interpretation when interpreting the statutory provision. As a result, if BTRC issues a notice under section 63 of the Act and entertain revision application under section 65 (5) of the Act, the Commission must also consider the mandatory procedure set out in section 65(2), (3) and (4) of the Act. It is the cardinal principle of interpretation that a statutory provision is not to be construed in isolation and must be interpreted in its proper context. So, Justice Ahmed rightly remarked that section 63 has not made any provision that gives BTRC the right to jump to section 65(5) of the Act, for an application of revision, without paying heed to the rest of the sub-sections of section 65. Thus, if section 65(5) of the Act is taken in isolation of the rest of the subsections of section 65 of the Act, it becomes ‘ambiguous’. It was held in Abdus Samad Azad v Bangladesh, that it is a cardinal principle of interpretation of statute… that it need to be interpreted not in isolation but always by reference to the context in which the said expression appeared. So, if section 65(5) is read together with section 63, without rest of the subsections of section 65, it will lead to ‘repugnancy’ which must be avoided.
The BTRC as a regulatory body would not have the power to cherry pick a particular provision of the Act in isolation without considering other interconnected provisions. So, Justice Ahmed in the Grameen Phone case stated that ‘section 65 in its entirety is the corridor within the statutory scheme through which the sanctity of the section 63 penal sanction must be gauged. Consequently, any failure to trigger section 65 or any of its components necessarily leads to a statutory infraction resulting in a more fundamental constitutional infraction.” Imposition of administrative fine must follow mechanism of fair play and the mechanism can be found in section 65 of the Act. So, selective application of any particular provision and ignoring the organic relationship between sections 63 an 65 would be treated as an exercise of unfettered discretion. On the basis of such misconception, imposition of fine would be unconstitutional, illegal and arbitrary. Finally, the Court directed the Commission to impose an administrative fine afresh after taking into consideration of section 63(3)(a) to be read in conjunction with the procedural provisions and protection granted under section 65(2), (3), (4), (5), (6) and (7).
Recommendations:
After the above discussion, the following recommendations can be given:
First, the Commission has the authority to adopt a guideline for the mobile phone operators in Bangladesh, but the new provisions of the guideline can only be imposed upon the licensee after complying the relevant section of the Act. If the commission acts arbitrarily it will bring unreasonable outcome which actually hinders the interest of the mobile phone operators. So, before taking any decision to change the terms and conditions of the existing license of the licensee, it becomes the responsibility to the Commission to exhaust the statutory provisions enshrined in the Telecommunication Act, 2001.
Second, the Commission cannot take a decision on the basis of a sub-section without referring the whole section. This is the cardinal principle of the statutory interpretation that a particular section should not be interpreted in isolation rather considering the entire context. Due to the reliance on a particular provision without paying attention to the objectives and relevant sections of the Act, ambiguous decisions have been taken by the Commission. To avoid this repugnancy, the commission should identify the organic relationship among the provisions of the Act and apply harmonious approach to implement the will of the legislature.
Third, the BTRC cannot impose fine on the basis that the violator has financial position to pay the fine. While imposing fine it must bear in mind by any regulatory body that whether they have the legitimate basis to award such fine without referring to the assets of the violators otherwise the fine would become ‘unconstitutional punitive damages award’. In addition, the Commission cannot determine the quantum of fines and penalties of the violator adopting different and distinct yardsticks.
Forth, the Act empowers the government to establish an appeal authority for the determination of an order of administrative fine. An appeal authority shall be consisted of a retired judge of the High Court Division of the Supreme Court of Bangladesh and two members appointed by the Government. But the government has not form this Appeal authority till to date which is necessary to dispose of the order of administrative fine imposed by the commission.
Conclusion:
The Bangladesh Telecommunication Regulatory Commission facilitates connecting the unconnected through telecommunication services at an affordable price by introducing new technologies. It also serves as a watchdog to prevent discriminatory actions taken by the mobile phone operators and to ensure fair and competitive market for all. However, the Commission has delivered its decision, sometimes, on the basis of misconception and ignoring the principle of statutory interpretation. As a result, arbitrary, unreasonable and capricious outcome undermines the interests of the mobile phone operators which is inconsistent with the broad objective of the Telecommunication law. The decision-making process of the Commission not only emphasizes the verbatim of the particular provision but also the interconnection among the provisions of the Act. When the Commission can understand the will of the legislature in implementing the provision of the statute, it will guide them to avoid illegality, irrationality and procedural impropriety. Finally, by its constructive and effective decision, the Commission will pave the way to ensure an efficient and developed mobile telecommunication services in Bangladesh.
Apr - 2021
Barrister Ahmed Ehsnaul Kabir
Globalisation has rendered international transactions more frequent and has shown inadequacy of national laws as a regulatory instrument thereof. Innovations in information technology and computer networks, a global shift towards market economies within nation states and regional and multilateral free trade agreements, have all led to an increasingly globalised world economy. Due to rise of globalisation and the expansion of trading frontiers, international commercial transactions have significantly increased in both numbers and complexity resulting in increased number of disputes. Consequently, International Commercial Arbitration-ICA has emerged as an important method for resolving such disputes arising in private cross-border or transnational economic transactions. As business practices and strategies have become increasingly complex and transnational, ICA has become the leading alternative to litigation as a means of settling international commercial and business disputes in a neutral forum.
In this paper, the discussion shall proceed as follows. In the first section I will discuss briefly the background information concerning ICA, in particular the following:-
(a) legal framework of the system of ICA;
(b) examine United Nations Commission on International Trade Law (UNCITRAL) and its role in the drafting of the Model Law on ICA;
(c) examine the UN Convention on the Recognition of and Enforcement of Foreign Arbitral Awards (New York Convention).
A. Background
(a) Legal Framework for ICA
The high degree of uncertainty and risk associated with litigating international business disputes in national courts has also been a contributing factor in the prominence of ICA as the preferred method of resolving international business and commercial disputes. One of the essential characteristics of ICA is the consensual nature of the arbitration process itself. The legal basis for arbitration lies in agreement by parties to submit disputes to an arbitral tribunal, i.e. arbitration proceedings are viewed as an expression of the will of the parties. The arbitration agreement defines the issues to be addressed by arbitration and the jurisdiction of the tribunal. Thus, where a dispute arises between parties who have entered into an arbitration agreement, the parties, subject to few exceptions, are obligated to resolve their disputes according to the agreement.
Effective operation of ICA, however, is dependent upon a complex regime of national laws, multilateral conventions, and bilateral treaties. Each ICA requires reference to a variety of national system of laws.
Firstly, there is a law governing the recognition and enforcement of the arbitration agreement and the performance of that agreement.
Secondly, there is a law regulating the actual arbitration proceeding before the arbitrators (often-national law of the place of the arbitration).
Thirdly, there is a law (or set of rules) applied by the arbitrator to the substance of the parties’ dispute-often referred to as the ‘applicable law’ or ‘governing law’.
Fourthly, there is a law governing the recognition and enforcement of arbitral award.
Although these laws may be the same, more often than not they are different.
The arbitration process generally consists of:
(a) an agreement to arbitrate;
(b) selection of arbitrators by the parties;
(c) agreement on the procedure to be followed by the arbitrators;
(d) an arbitration hearing before a single arbitrator or panel of arbitrators followed by the rendering of a binding award;
(e) the award being considered final and binding in jurisdictions; and
(f) the enforcement of the arbitration award with limited grounds for refusing enforcement.
The parties must decide in the arbitration agreement whether they wish to refer to and adopt the processes of a particular institution, or tailor their own process on an ad hoc basis. Depending on which form is chosen, parties may use recommended clauses of arbitral institutions.
If the parties choose international arbitration, they agree to submit their dispute to an institution, who will administer the arbitration. Some of the most common institutions include the American Arbitration Association-AAA, International Chamber of Commerce-ICC, or the London Court of International Arbitration-LCIA. An agreement for institutional arbitration can resolve most of the procedural and jurisdictional questions simply through reference to the institution and its procedural rules. In an ad hoc arbitration, the parties have the freedom to choose the rules, which would govern the arbitration proceedings. If the parties choose ad hoc arbitration, greater care needs to be given to identifying various procedural issues. A simpler alternative to trying to design a complete ad hoc procedural system is to designate one of the established procedural rule systems. One of the more common ad hoc arbitrations is one where the parties agree to arbitration by the UNCITRAL Arbitration Rules, with various modifications.
(b) UNCITRAL and the Drafting of the Model Law on ICA
UNCITRAL can be characterised as an epistemic community or a group of knowledge-based expert. UNCITRAL viewed itself as a-political legal organisation engaged in the technical process of harmonisation and unification and operating via a consensus basis of decision-and policymaking. UNCITRAL sought to harmonise national arbitration procedures worldwide through the enactment in 1985 of a model law dealing specifically with ICA, referred to as the ‘UNCITRAL Model Law on International Commercial Arbitration’. The stated objectives of UNCITRAL in drafting the Model Law were to harmonise national arbitration laws for international arbitration and to establish rules that would meet the needs and requirements of international arbitration. The expressed view was that uniformity, or at least essential similarity, of national arbitration laws in various legal and economic systems would facilitate the development of ICA.
UNCITRAL’s proposal for a model law rather than a convention or a uniform law to achieve harmonisation was due to difficulties of obtaining multilateral agreement on a precise text among nation states due to wide variation in existing national laws. UNCITRAL choose this ‘soft law’ approach to work towards a recognised similar norm with the Model Law as a guide in reforming national arbitration legislation rather than to insist on uniformity among national arbitration legislation.
The final text of the Model Law was adopted by UNCITRAL on June 21, 1985. The General Assembly approved the Model Law on December 11, 1985, and requested the transmittal of the text to the member states and arbitral institutions together with the travaux preparatories. Today, states from all over the world have adopted the Model Law. Some countries have adopted the Model Law as both their domestic arbitration law and their international arbitration law, while others prefer two separate regimes of law. Even countries that have not adopted the Model Law have clearly considered the Model Law at the time enacting national legislations, as evidenced by the English Arbitration Act of 1996. It is pertinent to note that although Model Law may present a view of complete harmony and understanding in many aspects of ICA, but this is not necessarily the case.
(c) UN Convention on the Recognition of and Enforcement of Foreign Arbitral Awards (New York Convention)
The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the “New York Arbitration Convention” or the “New York Convention” is one of the key instruments in international arbitration for recognition and enforcement of foreign arbitral award. The Convention is also important in the international system that ensures that agreements to arbitrate will be respected by the national courts. The New York Convention entered into force in 1959 and as of 2009 over 146 states worldwide had ratified the convention. It is the main international convention relevant to ICA and is one of the central reasons for the tremendous growth in popularity of international arbitration from 1960 onward.
The New York Convention has been described as “the single most important pillar on which the edifice of international arbitration rests”. The New York Convention established a new legal regime favouring international arbitration through the facilitation of recognition and enforcement of arbitral agreements and awards. The goal contemplated by the New York Convention is to facilitate the recognition and enforcement of foreign arbitral awards and the referral by a court to arbitration.
The first action envisaged under the New York Convention is the recognition and enforcement of foreign arbitral awards, i.e., arbitral awards made in the territory of another Contracting State. This field of application is defined in Article I. The general obligation for the Contracting States to recognise such awards as binding and to enforce them in accordance with their rules of procedure is laid down in Article III. A party seeking enforcement of a foreign award needs to supply to the court:-
(a) the arbitral award and
(b) the arbitration agreement (Article IV).
The party against whom enforcement is sought can object to the enforcement by submitting proof of one of the grounds for refusal of enforcement by domestic courts for basic fairness and consistency with national public policy which are listed in Article V(1). The court may also on its own motion refuse enforcement for reasons of public policy as provided in Article V(2).
The second action contemplated by the New York Convention is the referral by a court to arbitration. Article II(3) provides that a court of a Contracting State, when seized of a matter in respect of which the parties have made an arbitration agreement, must, at the request of one of the parties, refer them to arbitration (unless the arbitration agreement is invalid).
B. “Court Ordered Interim Measures” in ICA: Model Law and Comparative Study of National Legislations and Court Rulings
At the most fundamental level, interim measures of protection are forms of temporary relief intended to safeguard the rights of the parties until the arbitral tribunal issues a final award. Interim measures of protection arise in a variety of circumstances in international arbitration and their uses vary depending on the context and forum. The purpose of court-ordered interim measures is to make the ultimate decision of the arbitral tribunal more effective. Interim measures can have “final and significant consequences” without which an adverse party may easily render an award meaningless. Interim measures or reliefs can be broadly classified into the following categories:
(i) reliefs which are procedural in nature and which the arbitral tribunal cannot order or cannot enforce, e.g. compelling the attendance of witness, anti-suit injunctions etc.
(ii) reliefs which are evidentiary in nature and are required to protect any document or property as evidence for the arbitration;
(iii) reliefs which are interim or conservatory in nature and are required to preserve the subject matter of the dispute or the rights of a party thereto or to maintain the status quo and to prevent one party from doing a particular act or from bringing about a change in circumstances pending final determination of the dispute by the arbitrators. Such relief can be provided by granting a Mareva injunction, anti-suit injunction, attachment order etc.
The discussion under this part proceeds as follows: First, I propose to discuss the provision of court-ordered interim measures under the 2006 Amendments to the UNCITRAL Model Law. In the second part, I will discuss the handling of court ordered interim measures by national legislations and national courts in Bangladesh and India.
(a) UNCITRAL Model Law
The original version of the Model Law simply enumerated that a court may intervene in the arbitral process, without specifying the procedures and limits of this intervention. Consequently, crucial issues, such as the enforcement by courts of procedural orders issued by the arbitral tribunal or granting of interim order for preservation of assets out of which a subsequent award may be satisfied, were left unanswered. A first attempt to provide a harmonised discipline in this regard has been carried out with the 2006 reform of the UNCITRAL Model Law, by introducing a more detailed regulation of interim measures of protection including the most important case of court intervention during arbitral proceedings. Although the 2006 reform addresses this issue, one can only hope that, the national states would adopt the relevant provisions into their national legislations. However, the Model Law does not impose any obligation on the State to do so, in contrast to the New York Convention.
Although interim measures are frequently used in arbitration, none of the international conventions has provisions regulating the said regime. New York Convention is one of the key instruments in international arbitration for recognition and enforcement of foreign arbitral awards. It is the only convention that ensures that agreements to arbitrate will be respected by the national courts and enables them to pass an interim order to refer the dispute to arbitration. In this regard, Article II (3) of the New York Convention states that disputes that are subject matter of an arbitration agreement shall be referred by court to arbitration. Apart from the above power of court to grant interim order during or before arbitration proceedings, this issue is mostly regulated by national legislations and institutional rules. Other international conventions on ICA are silent on this issue. Recognising the need for provisions on “court-ordered interim measures” in the context of increased globalisation, UNCITRAL revised the original Model Law by inserting a new chapter IVA “Interim Measures and Preliminary Orders” to conform to current practices in international trade. It is pertinent to mention that Article 9 of the Model Law read with Paragraph 21, 22 and 30 of the Explanatory Note by the UNCITRAL Secretariat on the Model Law (with amendments as adopted in 2006) on International Commercial Arbitration (Explanatory Note) puts it beyond any doubt that existence of an arbitration agreement does not infringe on the power of the court to order interim measures. In view of this, many nations have either amended the specific provision or repealed the old law and enacted new legislation containing provisions for “Court-ordered interim measures”.
In countries that adopted the 2006 reform, national courts have the power to issue interim measures in relation to arbitration proceeding “irrespective of whether their place is in the territory of this state”. Article 1(2) of the Model Law provides that reference to arbitration, interim measure of protection, and recognition and enforcement of an award are few matters with respect to which national courts in all jurisdictions can exercise their power to assist arbitration. On the other hand, countries that have not adopted the Model Law allow their national legislation to determine whether the court has the relevant power notwithstanding the place of arbitration. The latter situation can give rise to diversity among national arbitration legislations on the issue of “court-ordered interim measure” which may have severe consequences in outcome of the arbitration proceeding or enforcing the arbitral award. For example, in some countries, which did not adopt the 2006 Reform of the Model Law, the national arbitration legislations contain provisions that allow national courts to grant interim relief only if the place of arbitration is in the territory of that state. Hence, in an ICA with a seat in, say, London, an aggrieved party cannot seek injunction from national court of a non model country to prevent the defendant from alienating his assets, especially where a substantial portion of it is located in the territory of that State. The above is a good example of an instance where harmonisation of the laws of ICA based on non-mandatory UNCITRAL Model Law is not sufficient.
(b) Example of National Legislations and Decision of National Courts leading to diversity
Bangladesh
Bangladesh is among the 146 countries (as of 2011) that have ratified the New York Convention. In its attempt to comply with the obligations under the New York Convention, the Government of Bangladesh repealed the outdated Arbitration Act, 1940 and enacted the Bangladesh Arbitration Act, 2001 (the 2001 Act), which was based heavily on the UNCITRAL Model Law. According to the preamble, the object of the 2001 Act is “to enact the law relating to international commercial arbitration, recognition and enforcement of foreign arbitral award and other arbitrations”. Being based heavily on the Model Law, the 2001 Act incorporates a range of laudable provisions, such as empowering national courts to issue various interim orders including injunctive relief, security for costs, pre-disclosure of documents and preservation of evidence.
Controversies, however, flamed with section 3 of the 2001 Act, which reads as follows:
“Section 3. Scope:-
(1) This Act shall apply where the place of arbitration is in Bangladesh.
(2) Notwithstanding anything contained in sub-section (1) of this section, the provisions of sections 45, 46 and 47 shall also apply to the arbitration if the place of that arbitration is outside Bangladesh.”
[Unofficial English Translation] The above section was based on Article 1(2) of the Model Law which was later amended to read as follows:
“Article 1. Scope of application:- (2) The provisions of this Law, except articles 8, 9, 17 H, 17 I, 17 J, 35 and 36, apply only if the place of arbitration is in the territory of this State.”
[Underlines Added]
The failure of the legislatures to amend the 2001 Act in light of the amended Article 1(2) to include Section 7, 7A and 10 of the 2001 Act (similar to Article 8, 9, and 17J of the Model Law) into Section 3(2) of the 2001 Act is a clear indication of the lack of legislative diligence that exist in Bangladesh. This oversight of the legislatures eventually led to the apex court of the country interpreting Section 3 of the 2001 Act very narrowly. In Unicol Bangladesh Blocks Thirteen and Fourteen v Maxwell Engineering Works Limited and another, the Hon’ble Appellate Division of the Supreme Court of Bangladesh held that in light of section 3(1), the provisions of the 2001 Act (except section 45, 46 & 47) is applicable only for ICAs held in Bangladesh. In the absence of any ambiguity in the wording of section 3(1) of the 2001 Act, the Hon’ble Appellate Division gave the said provision a literal interpretation. Such literal interpretation of S. 3(1), as given by the Appellate Division in Unicol and previously in various High Court decisions, was resulting in hardship to parties to international arbitrations. This current reading of section 3(1) essentially slams the door on a party to an ICA with a seat outside Bangladesh from availing court ordered interim measures in relation to arbitral proceedings (under Section 7A of the 2001 Act which is based on Article 17J of the Model Law) or requesting a court to refer the parties to arbitration when the matter is subject of an arbitration agreement (under Sections 7 read with section 10 of the 2001 Act which is based on Article 8 and 9 of the Model Law).
In this regard, a counter argument may be advanced that the rationale behind enactment of section 3(1) of the 2001 Act was to launch ICA in Bangladesh and to encourage having Bangladesh as a seat of arbitration. This argument has its limitations as the legislature neither expressed any desire to that effect nor took any steps which supports the above argument. It is pertinent to note that after enactment of the 2001 Act on 24.01.2001, it was only in 2011 that Bangladesh International Arbitration Centre-BIAC, the first international arbitration institution of the country commenced operation. Moreover, given the progress made by Hong Kong, Malaysia and Singapore in attracting itself as an ideal seat of arbitration in the Asia Pacific region, the above argument itself holds stale. In the above context, section 3(1) is at best hindering the process of ICA. Being a hindrance, section 3(1) of the 2001 Act and its subsequent interpretation is sending wrong signals to the regime of ICA.
India
India enacted the Arbitration and Conciliation Act, 1996 (“the 1996 Act”) to bring the law of arbitration in India in consonance with the international consensus reflected in the Model Law. Since its enactment, the Act has been a subject of significant amount of judicial interpretation.
For the purpose of this paper, the focus is on the question of applicability of Part-I of the 1996 Act to arbitrations which have their seat outside India. Section 2(2) of the 1996 Act provides that Part-I shall apply where the place of arbitration is in India. The predominant view amongst the various High Courts in India before the judgment in Bhatia International v Bulk Trading S.A. was that Part-I, by virtue of S. 2(2), would not apply to arbitrations held outside India. However, in Bhatia International the Supreme Court of India held that Part-I would apply to arbitrations held outside India unless its application is excluded. The question of applicability of Part-I is crucial since it contains certain important provisions which must be made available to international arbitrations held outside India for their smooth functioning, such as, the courts power to grant interim measures.
The question before the Supreme Court in Bhatia International was:
“Can a party in an arbitration being held outside India be allowed recourse to interim measures of protection from courts in India? ”
In the 1996 Act, there is no provision akin to Article 1(2) of the Model Law and hence the Act had a structural lacuna, as it did not delineate which of its provisions are to apply even when the seat of the arbitration is outside India. The Supreme Court was faced with the unenviable task of interpreting a statue that had certain structural lacunae. The literal interpretation of S. 2(2), as given by various High Courts, was resulting in hardship to parties to international arbitrations. The Supreme Court was forced to make up for this lacuna in the Act by placing an interpretation on S. 2(2). In the context of ICA, the Supreme Court of India gave the following interpretation to S. 2(2): In cases of international commercial arbitrations held out of India provisions of Part I would apply unless the parties by agreement express or implied, exclude all or any of its provisions. The Supreme Court, therefore, rejected the interpretation of S.2(2) given by the Delhi High Court in cases like Marriot as, in the opinion of the Supreme Court, they resulted in inconsistencies, uncertainty and friction in the system of arbitration. The result was that parties in an arbitration held outside India would be free to approach the courts to seek interim measures of protection.
However, the decision of Bhatia was subsequently revisited by the Supreme Court of India in the landmark case of Bharat Aluminium Company vs. Kaiser Aluminium Technical Services INC., wherein it overruled the decision of Bhatia International vs. Bulk Trading SA. and laid down that Part I of the Arbitration and Conciliation Act, 1996 does not apply to international commercial arbitrations held outside India. This decision not only minimised challenges to a foreign arbitral award under section 34 of the Part I of the Arbitration and Conciliation Act 1996 but also denied parties to arbitration with a seat outside India to secure any kind of interim relief from Indian Court. This situation led to the enactment of the Arbitration and Conciliation (Amendment) Act, 2015, wherein a new provison has now been added to section 2 of the Act, whereby a narrow option has been provided for a party for availing interim relief from indian courts even in the foreign seated arbitration. Section 2(II) of the Arbitration and Conciliation (Amendment) Act, 2015 read as follows:
“(II) in sub-section (2), the following proviso shall be inserted, namely:—
‘Provided that subject to an agreement to the contrary, the provisions of sections 9, 27 and clause (a) of sub-section (1) and sub-section (3) of section 37 shall also apply to international commercial arbitration, even if the place of arbitration is outside India, and an arbitral award made or to be made in such place is enforceable and recognised under the provisions of Part II of this Act.’”
This amendment ensures that contracting parties can carve out an exception to the blanket exclusion of Part I to the arbitral proceedings where the venue is outside India. In effect, this will provide an option to those parties who wish to apply to the Indian courts for interim relief where it is necessary to secure something rapidly.
C. Conclusion
Although interim measures of protection in arbitration have come a long way in recent times and the use of interim measures has proliferated, it is necessary to continue to refine and alter the system to meet the needs of today's ever-changing world of business. To make arbitration effective, it is necessary to implement some mechanism that can ensure that interim measures can be appropriately granted and enforced.
As stated earlier, interim measures of protection are critical to the facilitation of dispute resolution in every legal system. Interim relief, or the lack thereof, can have a substantial or even determinative effect on the outcome of any case, whether submitted to litigation or arbitration. There is currently no uniform practice in granting court ordered interim relief in arbitration. National laws differ significantly on the scope of the national courts’ power to grant interim relief. This lack of clarity and similarity raises concerns about predictability and enforcement. These concerns, if left unanswered, could have serious implications for the future arbitrations given that the success of arbitration is dependent on the satisfaction of parties and their confidence in the mechanism.
In view of the above discussion, time is ripe to consider the following recommendations:
(a) As the processes and standard for the conduction of arbitration have evolved and developed over time, so too have national arbitration laws. States’ responses to the development of arbitration laws should account for advancements in model legislation regarding interim relief, particularly court ordered interim relief. To date, Mauritius, Slovenia, New Zealand, and Peru incorporated the Model Law amendments into their national law. By following suit and codifying the amendments to Article 17 (including Article 17J read with Article 1(2)), other states will facilitate the resolution of international commercial disputes by harmonising arbitration legislation, increasing confidence in ICA as a dispute resolution mechanism and making all states equally attractive as seats for arbitral disputes.
(b) Unfortunately, despite widespread support for the amen-dment within UNCITRAL Model Law, the majority of states including Bangladesh have not yet seriously considered the incorporation of the 2006 amendments into national law. Countries like Bangladesh that do not wish to incorporate the 2006 reform fully should consider incorporating at least those provisions that are uncontroversial as a first step in achieving greater harmonisation. In short, the legislatures of Bangladesh should consider, amongst others:-
(i) amending section 3(2) of the 2001 Act to include section 7, 7A and 10 of the 2001 Act (corresponding to Article 8, 9 and 17J of the Model Law) along with section 45, 46 & 47 so that the said provisions are applicable even if the place of arbitration is outside Bangladesh, or
(ii) inserting a provision similar to the one inserted by India by Section 2(II) of the Arbitration and Conciliation (Amendment) Act, 2015. This amendment would ensure that contracting parties can carve out an exception to the blanket exclusion of section 7, 7A and 10 to the arbitral proceedings where the venue is outside Bangladesh.
See Katherine Lynch, The Forces Of Economic Globalization: Challenges To The Regime Of International Commercial Arbitration 1-2 (2003).
Alan Redfern & Martin Hunter, Law and Practice of International Commercial Arbitration (3rd Ed., 1999) at 1.
See Christopher R. Drahozal, “Commercial Norms, Commercial Codes, and International Commercial Arbitration” (2000) 33 Vand. J. Transnat’l L. 79, 95
United Nation Convention on the Recognition of and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T.2517, 30 U.N.T.S. 3(1958) [hereinafter New York Convention].
As evident from Article 9 an d 17 of the Model Law which governs interim measures of relief.
United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T.S. 3(1958).
The updated list of Contracting States to the New York Convention can be found at UNCITRAL website, available at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html (last visited June 27, 2012)
J.Gillis Wetter, “The Present Status of the International Court of Arbitration of the ICC: An Appraisal” (1990) 1 Am. Rev. Int’l Arb. 91
John Charles Thomas, Selected Issues: Interim Measures in International Arbitration: Finding the Best Answer
UNCITRAL, Analytical Commentary on Draft Text of a Model Law on International Commercial Arbitration, Report of the Secretariat, 42, delivered to the General Assembly, U.N. Doc. A/CN.9/264 (Mar. 25, 1985);
See generally Gary B.Born, International Commercial Arbitration (2009);
Page-112, International Arbitration and National Courts: The Never Ending Story
Silver Standard Resources Inc. v. Joint Stock Co. Geolog, (1998), 168 D.L.R. (4th) 309 (B.C.C.A.)
Donaldson International Livestock Ltd. v. Znamensky Selekcionno-Gibridny Center LLC, (2008) 305 D.L.R. (4th) 432; 2008 ONCA 872
See Article 17I read with Article 1(2) of the UNCITRAL Model Law
The Unofficial English Translation of Section 3 of the Arbitration Act, 2001 reads as follows: Section 3. Scope-(1) This Act shall apply where the place of arbitration is in Bangladesh.
(2) Notwithstanding anything contained in sub-section (1) of this section, the provisions of sections 45, 46 and 47 shall also apply to the arbitration if the place of that arbitration is outside Bangladesh.
Article 1(2) of the Model Law was amended by the United Nations Commission in 2006.
56 DLR (AD) (2004)166;
Also in the unreported decision of Civil Petition For Leave to Appeal Nos. 73-75/1982
Uzbekistan Airways and another v Air Spain Ltd 10 BLC (2005) 614; Canada Shipping and Trading S.A. v TT Katikaayu and another 54 DLR (2002) 93;
Also see STX v Meghan Group of Industries Limited (2012) BLD 400;
The most important provisions being, amongst other,(a) section 9 deals with court ordered interim relief, (b) section 11 deals with appointment of arbitrator, (c) section 27 gives power to the parties to apply to the court for taking its assistance during evidence, and (d) section 34 which provides the conditions on the basis of which an award can be set aside.
Bhatia International v. Bulk Trading S.A, (2002), AIR SC 1432
In Bhatia International at Para 12 it is pointed out that the Orissa, Bombay, Madras, Delhi and Calcutta High Courts have held that Part-I of the 1996 Act would not apply to arbitrations which take place outside India. Some of these decisions are: Marriot International Inc. v. Ansal Hotels Ltd. AIR 2000 Delhi 377; Biotechnology NV v. Unicorn GmbH Rahn Plastmaschinen 1998 (47) DRJ 397; Keventor Agro Ltd. v.Seagram Company Ltd. 1998 CS No. 592 of 1997 dated 27.01.1998 (Cal).
However, in Dozco India P. Limited vs Doosan Infracore Co. Limited (2010)(9)UJ 4521(SC): Manu/SC/0812/2010 (decided on 08 October 2010), the decision in Bhatia Case has been distinguished by the Supreme Court of India in respect of arbitration clauses which expressly provided that the place of arbitration would be outside India.
(2012) 9 SCC 552
The Amendment Act introduced some much needed changes to the Act, which came in force from October 23, 2015
See UNCITRAL Working Group on Arbitration, Possible Future Work: Court Ordered Interim Measures of Protection in Support of Arbitration, Scope of Interim Measures That May be Issued by Arbitral Tribunals, Validity of Agreement to Arbitrate, Report of the Secretary General, delivered to the General Assembly, UN Doc. A/CN.9/WG.111 (Oct.12, 2000)
See William Wang, “International Arbitration: The Need for Uniform Interim Measures of Relief” 28 Brook. J. Int’l L.1059 at 1075
See Richard W. Naimark & Stephanie E. Keer, Analysis of UNCITRAL Questionnaires on Interim Relief, 16-3 Mealey's Int'l Arb. Rep.11 (2001) at 11.
See Guiseppe De palo & Linda Costabile, Promotion of International Commercial Arbitration and Alternative Dispute resolution Techniques in Ten Southern Mediterranean Countries, 7 Cardozo J. Conflict Resol. 303, 304 (2006) (asserting that country benefit from confidence of investors in arbitration)
See UNCITRAL, Status of Conventions and Model Laws, Note by the Secretariat, 5, delivered to the General Assembly, U.N. Doc. AICN.9/674 (May 14, 2009) [hereinafter Status of Model Law] (indicating that only four states have enacted legislation based on the 2006 Model Law provisions on interim measures, significantly lower than the number of states that incorporated the previous 1985 version of Article 17).
UNCITRAL, Report of the Working Group on Arbitration on the Work of its Thirty-Second Session, 64, delivered to the General Assembly, U.N. Doc. A/CN.9/468 (Apr. 10, 2000) [hereinafter Report of the Thirty-Second Session]
Feb - 2017
Mohammed Muddasir Hossain
Introduction:
Adopting the new technological development, Bangladesh
had opened up its telecommunication sector for mobile
phone services during 1990s. The first mobile phone license
was issued in 1989 and five more licenses were issued
subsequently during 1996-2006. Since the inception of the
mobile phone services, the sector had been suffering from
many drawbacks: low-level of investment, limited capacity
to meet growing demand, poor service quality and high tariff.
To regulate and to improve the telecommunication sector,
the Telecommunication Act was enacted in 2001. Under
this Act, the Bangladesh Telecommunication Regulatory
Commission (the Commission) was established for the
purpose of development and efficient management of
telecommunication system and telecommunication services
in Bangladesh. The Commission will act independently
within the powers conferred by the Act of 2001. However,
the present article will show that in many instances, the
Commission has failed to comply with the legal procedures
enshrined in the Act and resultantly, the actions of the
Commission have been challenged by the mobile phone
operators before the apex Court of the country. After
examining the relevant judgements of the Supreme Court, it
becomes clear that the Commission acted unreasonably and
arbitrarily in imposing administrative fine as well as amending
the conditions of the license which actually portray the
Commission’s inability to uphold the interests of the mobile
phone operators. In this connection, the article delineates
the objectives, composition, powers and functions of the
commission. Finally, recommendations have been given to
take a decision by the Commission following the cardinal
principles of the statutory interpretations and implementing
the manifestation of the will of the legislature for ensuring
the competitive and innovative mobile telecommunication
sector in Bangladesh.
Establishment and Composition of the BTRC:
The Bangladesh Telecommunication Regulatory Commission
has been established under section 6 of the Telecommunication
Act, 2001 with a view to encouraging the orderly development
of a telecommunication system that enhances and strengthens
the social and economic welfare of Bangladesh.1 In addition, the
1 Section 29 (a), The Telecommunication Act, 20012 Section 29 (b), ibid
3 Section 29 (c), ibid
4 Section 29 (d), ibid and World Tel Bangladesh Ltd. Vs. Bangladesh & Ors. 20 BLT
(2012) AD 108.
5 Section 29 (e), ibid
6 Section 7(1), ibid
7 Section 10(1)(a), ibid
8 Section 10 (1) (b), ibid
9 Section 10(1) (c), ibid
10 Section 10 (2), ibid, section 10(2) provides No person shall be qualified for
appointment to or for holding the office of the Commissioner, who a) is not a citizen
of Bangladesh, b) has been elected a member of the Parliament or of any local
government or has been nominated as a candidate for such election; c) has been
declared or identified by the Bangladesh Bank or by a Bank or financial institution or
by the court as a defaulter loanee of that bank or institution, d) has been declared
by the court as a bankrupt and has not been discharged from that liability, e) has
been on conviction for a criminal offence involving moral turpitude, sentenced to
imprisonment for a term of two years or more, and a period of five years has not
elapsed his since release from such imprisonment; f) is, after being appointed
Commissioner, directly engaged in any income generating activity outside the
responsibilities of his office; g) is, in the capacity of an owner, shareholder, director,
officer, partner or consultant, directly or indirectly interested in the following: i) a
Commission will try to ensure access to reliable, reasonably
priced and modern telecommunication services and internet
services for the greatest number of people keeping in mind
that prevalent social and economic realities of Bangladesh.2
Moreover, the Commission will pave the way to make efficient
national telecommunication system and its capability to
compete in both the national and international spheres.3
To ensure competitive market system, the Commission
will eliminate discriminatory practices 4 and also create a
favourable environment for local and foreign investors who
intend to invest in the telecommunication sector.5
The Commission shall consist of 5 (five) commissioners,
and the Government shall appoint one of them to be the
Chairman and another to be the Vice-Chairman.6 At least
two of the Commissioners shall be engineers having at
least 15 (fifteen) years’ practical experience in the field of
telecommunication7and at least one shall be an advocate
or a judge having 15 (fifteen) years’ practical experience in
law including the qualification for appointment of a judge
of the High Court Division.8 And another shall be a person
having 15 (fifteen ) years’ practical experience in business or
industry or finance or economic or protection of consumer
interest or management or administration.9 In addition, law
specifies who cannot be qualified for appointment to, or for
holding, the office of the Commissioner.10 Any Commissioner may resign from his office by sending to the Government
a written notice of three months and a copy thereof to the
Chairman or, where the Chairman himself resigns to the
Vice-Chairman.11 Moreover, the government may remove a
commissioner from the office if any situation occurs specified
in section 10(2) or if he is found guilty of corruption, misuse
of power, gross misconduct or gross negligence in duty. 12 To
remove a commissioner, the Government shall constitute
an Enquiry Committee13 consisting of one or more judges of
the Supreme Court and shall also specify the time limit for
submission of the enquiry report.14 The Chief executive of the
Commission shall be the Chairman and where the Chairman
is unable to perform the functions of his office due to
resignation, removal, absence, illness or any other cause, the
Vice-Chairman shall be competent to exercise all the powers
and perform all the functions and duties of the Chairman.
Where both the Chairman and Vice-Chairman are unable to
perform their functions and duties, the Government may
direct a Commissioner to temporarily act as the Chairman.15
All meetings of the Commission shall be presided over by the
Chairman and in his absence the Vice-Chairman.16 A decision
of the Commission shall be taken in accordance with the
majority votes of the Commissioners present in the meeting
and in case of equality of votes, the person presiding shall
have a second or casting vote.17 When a decision to be taken
on a specific issue, any two commissioners may request the
Chairman to call a meeting in written form and the Chairman
shall call a meeting within 7 (seven) days of receiving of such
notice.18
Functions and powers of the BTRC:
The main function of the BTRC is to regulate and maintain
the telecommunication services in Bangladesh.19 To protect
the interest of the local consumer in respect of the charges
and to ensure the quality and variety of services are the duties
firm or company or other organization which requires a license or technical
acceptance certificate or permit under this Act for establishing or operating a
telecommunication system or for providing telecommunication service: provided
that a member or officer of the board of directors, by whatever name called, of a
statutory body may be appointed as a Commissioner if he discontinues his service
in that body; or ii) any farm or company or corporation or other organization which is
a telecommunication operator in a foreign country or which manufactures or
distributes telecommunication apparatus or radio apparatus in a foreign country, or
which carries on business or provides telecommunication services in Bangladesh, h)
is unable to perform the functions of his office due to physical and mental incapacity
or i) fails to comply with the provisions of sub-section (3) in time.
11 Section 12(1), ibid
12 Section 12(2)(b), ibid
13 The Enquiry Committee shall be deemed to be a commission appointed under the
Commission of Enquiry Act, 1956 (VI of 1956) and provisions of that Act shall,
subject to the Telecommunication Act, 2001, apply to the Committee. (Section 12(7)
Telecommunication Act, 2001)
14 Section 12(3), ibid
15 Section 14, ibid
16 Section 15(3), ibid
17 Section 15(4), ibid
18 Section 14(5), ibid
19 Section 30 (1), ibid20 Section 30(1)(b), ibid
21 Section 30(1)(d), ibid
22 Section 30(1)(e), ibid
23 Section 30 (1)(j), ibid
24 Section 30(1)(a), ibid
25 Section 30(2)(f), ibid
26 Section 30(2)(h)(i), ibid
27 Section 30(2)(l)(q), ibid
28 Section 30(2)(j), ibid
29 Section 31(2)(q)(i), ibid
30 Section 31(2)(a), ibid
31 Section 31(2)(a)(iii), ibid
32 Section 31(2)(a)(iv), ibid
33 Section 31(2)(a)(v), ibid
34 Section 31(2)(b), ibid
35 Section 31(2)(l), ibid
dispute which shall be final for the parties.36
Amendment of the License Non-complying with the
Statutory Procedure:
The Commission will have the right to amend, add and
substitute any terms of the license issued under the
Telecommunication Act, 2001,37 after getting prior approval
from the Government. So, the Commission after being
directed by the Government can amend the conditions of
the license and such amendment can be brought following
the procedure enshrined in sub-section 2 of the Section
39. Before initiating any amendment, the BTRC will issue
a written notice upon the license holder giving 15 (fifteen)
days to respond in writing about the proposed amendment.
The Commission will take decision considering such written
statement of the licensee.38
In 2011, the BTRC issued a Guideline titled ‘Cellular Mobile
Phone Operator Regulatory and Licensing Guideline, 2011’.
By this guideline, new fees were introduced as license
renewal fee, new assignment fee, etc. Under clause 8.01(ii)
new spectrum assignment fee of Tk. 150 crore per MHz
was fixed. By the same clause, new fee or charges named
‘Market Competition Factors’ - MCF based on market share
of the operators was introduced and the Commission claimed
Spectrum Assignment Fee from the Grameen Phone based
on the said MCF which related to the already assigned
Spectrum (7.4 MHz – 1800 band) in 2008. This kind of change
by imposing additional charge on the spectrum of 2008 may
be done after complying with the provisions of notice as
mandated by section 39(2). On the basis of the Guidelines,
the BTRC amended the license imposing MCF without serving
such notice and no negotiation or agreement was taken place
between the parties. It was held in the Grameen Phone Ltd.
Vs. Bangladesh Telecommunication Regulatory Commission
(Spl. Org.) 39 that imposing MCF in respect of 7.4 in 1800 MHz
assigned in 2008 to Grameen Phone was not complying with
the provisions of section 39(2) of the Telecommunication
Act, 2001 and suffers from serious ‘unreasonableness’. As a
result, the court declared such imposition of MCF was without
lawful authority having no legal effect. Consequently, the
Grameen Phone was not required to pay the enhanced rate of
Spectrum fee on the basis of the Guideline.
Arbitrary Imposition of Administrative fine by the BTRC :
As a regulatory body, the BTRC (the Commission) has the
right to impose an administrative fee 40 if a licensee or the
holder of a certificate or permit violates any provision of the
Telecommunication Act, 2001 (the Act) or regulations or any condition of the license or permit in operating a system or
in providing a service.41 In addition, the Commission can also
impose such an administrative fee if the licensee obtained
such license or permit or technical acceptance certificate by
furnishing a false information.42 In case of violation of the
provisions of the Act or the condition of the license or the
licensee submitted any false information, the Commission
may show cause the violator within 30 (Thirty) days.43 If the
violators failed to comply with the corrective or remedial
measures directed by the Commission44 or failed to give reply
or a satisfactory explanation about the cause of violation,
then the commission may impose upon the violator an
administrative fine not exceeding 300 crore taka and if
the violation continues after the issuance of the order, an
additional administrative fine not exceeding one crore taka
for each day.45 Moreover, the commission can also suspend or
cancel the license, permit or certificate or impose additional
conditions.46
The Act empowers the Commission to make regulation for
imposition of the administrative fine for the violations of
the provisions of the Act or regulation.47 Under section 65 of
the Act, if the Commission imposes any administrative fine,
it becomes obligatory upon the commission to serve on the
violator a notice depicting the opportunity of the violator to
admit the violation, deposit administrative fine specified in
the notice and thus get himself discharged from the liability
and the violator may also explain his position in this regard.48
Before imposition of such fine, the Commission shall
determine the nature of the offence and amount of loss.49
When a violation noticed by the Commission, an Inspector
on behalf of the Commission shall fill up a prescribed notice
specifying therein the relevant facts and put his signature
therein and shall serve the notice personally to the violator
or he shall send the notice to the last known address of the
residence or work place of the violator.50
Jan - 2022
Barrister Ahmed Ehsnaul Kabir
