27/08/2026
27.08.2026
The recent judgment in Manikganj Power Generations Limited v. Yew Choon Private Limited (Arbitration Application No. 14/2023), the High Court Division of the Supreme Court of Bangladesh has clarified the legal principles applicable for burden of proof and law of costs in arbitration proceedings. The petitioner (Manikganj Power, the respondent in the arbitration) challenged the arbitral award on two grounds viz. firstly, the arbitral tribunal shifted burden of proof in the arbitral proceedings and secondly, the tribunal awarded costs in favour of the respondent (Yew Choon, the claimant in the arbitration) despite the fact that it managed to prevail over only 17.88% of the claim.
The High Court Division agreed with the petitioner’s legal submission that the procedural flexibility in arbitration cannot
justify a departure from the elementary principle that the claimant must first establish the factual foundation of its claim. But on the facts the court observed that despite attaching greater weight to the respondent's records than to the petitioner's evidence, the legal position, as submitted by the petitioner, was not dislodged by the tribunal and the burden of proof was not shifted.
On the question of costs, while observing the petitioner’s submission as “attractive at first blush” regarding the respondent being entitled to only apportioned costs due to the fact that only 17.88% of its original claim being successful, the court held that the Arbitration Act 2001 does not lay down that costs must invariably be awarded in direct mathematical proportion to the amount recovered. As a result, the court disagreed with the proposition of apportionment of costs.
This is the first case in Bangladesh arbitration jurisprudence about the legal principles of burden of proof and evidence as applicable to arbitral proceedings and also the question of apportionment of costs.
Vertex Chambers Managing Partner Junayed Chowdhury represented the petitioner (Manikganj Power, the respondent in the arbitration) in the challenge proceedings with assistance from Of Counsel Asif Bin Anwar and Senior Associate Maliha Ahmed.
