COURT INTERVENTION IN ARBITRATION: PAKISTAN’S PERSPECTIVE

By:
SAAD MIR
Advocate High Court

INTRODUCTION

With the tremendous growth in international trade and investments, international commercial arbitration has become a commonly used mechanism to settle investment, trade and contractual disputes. Arbitration is chosen as a method of dispute resolution over traditional Court proceedings, because of the possibility of achieving a relatively economical final solution by specialist arbitrators, through a quick and often less formal procedure. However, arbitration is not completely independent of the national Courts of the seat of the arbitration. There is room for interaction between the local Courts and arbitration tribunals. The real issue is to define a point where the reliance of arbitration on national Court begins and where the Court should detach itself from arbitral proceedings.

Lord Mustill clearly explained this conflict in his foreword to the treatise on Indian arbitration law by OP Malhotra: [1]

“First, there is the central importance of a harmonious relation between the Courts and the arbitral process. This has always involved a delicate balance, since the urge of any judge is to see justice done, and to put right injustice wherever he or she finds it; and if it is found in an arbitration, why then the judge feels the need to intervene. On the other side, those active in the world of arbitration stress its voluntary nature, and urge that it is wrong in principle for the Courts to concern themselves with disputes which the parties have formally chosen to withdraw from them, quite apart from the waste of time and expense caused by gratuitous judicial interference. To a degree both views were right, and remain so; the problem has been to give proper weight to each of them. It was an unhappy feature of discourse on arbitration in the century just past that the legitimate arguments which could be advanced in favour of one or another came to be expressed, in some instances at least, with quite unnecessary vigour. Fortunately, in recent years wiser counsels have prevailed, and it has, I believe, generally come to be recognized on both sides of the procedural divide that the Courts must be partners not superiors or antagonists, in a process which is vital to commerce at home or abroad …..

……… Anyone who has been faced in a judicial capacity with a decision which seems wrong, can sympathize with the impulse to decide the issue again, this time correctly; yet in the field of arbitration it is an impulse which must, at all costs, be resisted, except in those circumstances where the legislature has explicitly created the right of appeal.... Precisely the same considerations apply to procedures in the arbitration. The parties have chosen to arbitrate, not litigate. By doing so they have selected the procedures laid down by the relevant legislation or institutional rules. If there are none, then they have deliberately entrusted the choice of procedures to the arbitrator himself. This is another choice which the Court must respect. The Judge may think, and think rightly, that the choice is unwise, that a different procedure would better have suited the dispute in hand. Or he may believe, again rightly, that what the arbitrator did was inefficient or even in a degree unjust. But his or her task is not to re-try the case, but simply to ensure that the method of dispute resolution on which the parties agreed is what they have in the event received. Moreover, only where the departure from the agreed method is of a degree which involves real injustice, is the Court entitled to intervene, and even then the intervention must be so crafted as to cause the minimum interference with the forward momentum of the process”.

The relationship between national Courts and arbitration is such that both must co-exist together. As arbitration is a consensual process, it is sometimes necessary to use the Court’s coercive powers where there is a reluctant party. Again quoting Lord Mustill as he explained this relationship in the following words: [2]

“Ideally, the handling of arbitral disputes should resemble a relay race. In the initial stages, before the arbitrators are seized of the dispute, the baton is in the grasp of the Court; for at that stage there is no other organization which could take steps to prevent the arbitration agreement from being ineffectual. When the arbitrators take charge they take over the baton and retain it until they have made an award. At this point, having no longer a function to fulfill, the arbitrators hand back the baton so that the Court can, in case of need, lend its coercive powers to the enforcement of the award.”

The support of the Courts is an integral and indispensable part of the arbitration mechanism, as no arbitration can achieve its aims without the assistance of the domestic juridical system. [3] Moreover, the involvement of the public judicial system guarantees that a minimum standard of due process and fairness in the arbitration proceedings is ensured. [4] It may be wondered whether the fact of situating arbitration in a particular jurisdiction is a connection strong enough to give its Courts the jurisdiction to check over the mandatory procedural safeguards. [5] But the proximity between the place of arbitration and the local Courts suggests that the local Courts would be in a much better position to assess the regularity and legality of arbitral proceedings conducted there to give the process necessary support or assistance than the judge at the place of enforcement.[6] The role and the extent of the powers that Courts may exercise relating to arbitration vary from country to country, depending mainly on the general approach national legislation takes towards alternative dispute resolution mechanisms, which can range from an open mistrust to full acknowledgment of their autonomy.[7]

In this paper, emphasis would be laid upon the practices usually followed in Pakistani jurisdiction. Pakistani Courts have by and large supported the decision by parties to submit their disputes to arbitration, for resolution by a forum of their own choice, especially those having an international dimension. This approach is reflected in their reluctance to interfere with the arbitral process, or to overrule or reverse arbitration awards but there are some instances which earned Pakistan a repute of being an unfriendly jurisdiction towards international arbitration. Those instances would be discussed in detail in this dissertation along with the criticism that was made by the international arbitration community upon those unwarranted interferences. In those instances[8]. Pakistani Courts are said to have intervened into the arbitral process by accepting the jurisdiction upon the matters where exclusive jurisdiction should have been allowed to the tribunals. There is no disagreement upon the fact that such instances should had been better addressed by the Pakistani Courts but it is unfortunate that the international arbitration community didn’t analyze the overall judicial stand of Pakistani Courts. As mentioned above, a quick review of a large number of Court decisions of Pakistan depict that majority decisions uphold the arbitration agreement and refuse the Court jurisdiction in favor of arbitration proceedings.

The tribal people of Pakistan used to resolve their domestic disputes by nominating a senior person of the tribe as arbitrator and the commercial disputes by bringing those to ‘PUNCHAIAT’[9] or ‘JIRGA’[10].[11] These tribes have been settled there for long and have been following their customary laws since ages. Even today, along with normal administration of justice through Courts, this informal activity of justice is also going on side by side in Pakistan especially in provinces named Baluchistan and Khyber Pakhtunkhawa. Whenever an offence takes place or a dispute arises, the local elders, who command influence and credibility, gather and enter into intensive negotiations with the parties for amicable resolution of the conflicts.[12] The beauty of the system is that all the affected parties, i.e. the offender, the victim and local community are deeply involved in the process and efforts are made to resolve the conflict to the satisfaction of all concerned.[13] Although this type of arbitration cannot be compared with the modern institutionalized arbitration but it establishes the fact that Pakistan does not have any historical prejudice with arbitration system.

Islam is the state religion of Pakistan and the injunctions of Islam as laid down in the Holy Quran and Sunnah are mandated to be the supreme law and source of guidance for legislation and for policy-making by the government.[14] Islam not only recognizes but also encourages settlement of disputes through arbitration.[15] Disputes in pre-Islamic society in Arabia, which were not settled by negotiations between the parties, were settled by means of arbitration.[16] The Holy Prophet continued the tradition and acted as an arbitrator in many instances. The Holy Quran sanctified the process.[17] Arbitration is, therefore, an integral part of the country’s psyche. Having such historical and religious connection with arbitration, still Pakistan lags behind in international arbitration for a number of reasons which will be discussed in this paper later on, elaborating on them and to come up with solutions to improve the prevailing uncertainty.

ENGLISH PRACTICE REGARDING INTERVENTION OF COURTS IN ARBITRATION PROCESS

Before 1947, Pakistan was a British colony and was governed by English laws. Even today, after passing of its own constitution in 1973, some terraces of English law are quite evident, on the face of the constitution. As Pakistan is a common law jurisdiction and still in a phase, it would be much better to compare it with the English practices regarding Court intervention in arbitration because it provides an excellent example of a legal system moving from a regime of strict control over arbitration to one of comparative-freedom. In England, arbitration was adopted as a popular means of commercial dispute resolution as far back as 1224.[18] Initially, common law Courts weren’t comfortable with the fact of submitting disputes to extra judicial forums but as the commercial activities grew and the burden of large volumes of litigation was upon the Courts as well, it led to a positive change in the judicial attitude. The relationship between the English Courts and arbitration has not always been an easy one.

In England, the hostile attitude of the Court started with the infamous 1609 decision of Lord Coke[19] in the Vynior’s case[20]. The case involved a performance bond that supported the obligation to arbitrate. After enforcing the penalty originally agreed upon by the parties for breach of the agreement to arbitrate. Lord Coke indicated in dictum that a party to a dispute could revoke the arbitrator’s authority to hear and decide cases, at any time before an award was rendered. The dictum pronounced by Lord Edward Coke in Vyinor’s case was:

“that though one may be bound to stand to the arbitrament yet he may countermand the arbitrator...as a man cannot by his own act make such an authority or warrant not countermandable which by law and its own...nature is countermandable.”

This ruling meant that the decisions of arbitrators could be reversed by the English Courts and the contracts to submit to arbitration were declared to be revocable. This precedent was viewed to be binding for the next two to three centuries in England. Indeed while this ruling occurred before the common law doctrine of binding contracts was fully formed, as common law Courts began enforcing all contracts to which parties intended to bind themselves, they continued to treat arbitration clauses as revocable. The Vynior’s case doctrine of revocability was later on again justified and even reinforced in Kill v. Hollister,[21] when it was declared that contracts to arbitrate are revocable because they oust Courts of their jurisdiction. Thus, the first defenders of the revocability doctrine spoke of the interest of the Courts, rather than the interests of parties contracting to use arbitration, suggesting that the Courts of England saw arbitration as a threat to their control of dispute resolution, that is, as a possible substitute for their services.[22] The English, Court’s attitude to arbitration was a reflection of existing legislations, which did not advance the prospect of arbitration. The situation did not improve even after lord Campbell had declared in the case of Scott v. Avery[23], that there was nothing wrong when parties hound themselves to settle their disputes in any manner agreeable to them. In Scott v. Avery, a marine insurance policy provided that the insured was not entitled to maintain any action of that policy until the matter has been decided by the arbitrators. Thus obtaining the decision of the arbitrator was made a condition precedent to maintain an action. The House of Lords decided that though it is a principle of law that the parties cannot, by contrast oust the jurisdiction of the Courts, any person may covenant that no right of action shall accrue till an arbitrator has decided on any difference that may arise between the two parties to the covenant. The House of Lords upheld the legality of this condition holding that until an award was made, no action could be maintained.[24]

The English Parliament enacted successive Arbitration Acts which persistently maintained the supervisory powers of the Courts over arbitral proceedings, through the special case procedure, enabling Courts to set aside awards for error of law and fact.[25] The special case procedure was codified in section 21 of the Arbitration Act, 1950 which gave power to an arbitrator to state any part of an award in the form of a ‘special case’ for the consideration of the High Court and empowered the Courts to order the arbitrator to state a case if he refused to do so. So in this way the English Courts exercised a strict supervision of arbitral tribunals and arbitrators by reviewing the arbitration awards. The procedure was strongly criticized as it was commonly used by the losing parties to delay the payment of an award and England came to be viewed as an unattractive place for international arbitration.

Then came the Arbitration Act, 1979 which abolished the special case procedure and allowed the parties to exclude the right of appeal to the Court, subject to certain limitations.[26] However the Arbitration Act, 1979 was not enough to deal with the complexity of the issue. The hostility came to an end in England with the enactment of the Arbitration Act of 1996. which gave validity to arbitration agreements and empowered the Courts to stay proceedings of claims subject to valid arbitration agreements; thus offering support to the arbitral process.[27] The Arbitration Act, 1996 also recognizes the competence of arbitral tribunals to resolve jurisdictional objections. The major objective of the Arbitration Act, 1996 is to drastically reduce the extent of Court intervention in the arbitral process. This Act developed a hybrid solution: under Section 32, the Court may decide a preliminary point of jurisdiction only upon agreement of all parties, or if the tribunal grants permission and the Court is satisfied that its intervention is appropriate. In the absence of these conditions, a party may challenge the tribunal’s jurisdiction before a Court only after the award has been rendered. In both cases, the tribunal may continue the arbitral proceedings while the application to the Court is pending. The English approach seems to offer a good compromise between the need to prevent disruption of the arbitral proceedings and the need to save costs and avoid arbitration proceedings when the tribunal lacks jurisdiction. [28]

Despite the fact that England has come a long way in development of its arbitration laws and organized a much efficient system of resolving its commercial disputes, still there have been some instances when English Courts have intervened in the arbitration proceedings or refused enforcement of arbitral awards. One of the most controversial grounds for non-enforcement of arbitral awards is public policy. This forms the basis of Article V(2)(b) of the New York Convention which is also incorporated as section 103(3) of English Arbitration Act, 1996. It provides that an award cannot be recognized or enforced if it is contrary to the country’s public policy. There are some instances when English Courts showed some reluctance to recognize or accept the award triggering up the controversy that existed long time ago. Like in Soleimany v. Soleimany[29] a dispute arose under a contract for the illegal export of carpets from Iran and it was referred to arbitration in England in accordance with Jewish law. The award referred to the illegality of the contract but awarded a sum to the claimant. The Court of Appeal held that it would be contrary to public policy for the award to be enforced.[30]

Recently, in Dallah Real Estate and Tourism Holding Company v. The Ministry of Religious Affairs, Government of Pakistan[31], the English Supreme Court refused to enforce the French ICC award against assets of Government of Pakistan in England, on the ground that Government of Pakistan was not a party to the relevant arbitration agreement. This decision has triggered a great deal of debate because in an application challenging the award in France, the French Court of Appeal subsequently ruled that the Government of Pakistan was a party to the arbitration agreement. The decision of the English Supreme Court has prompted some commentators to suggest that the England’s pro-arbitration reputation has started to erode. Such small number of instances as mentioned above can occur in any jurisdiction but the overall stand of English Courts especially after the codification of Arbitration Act, 1996 has been to refrain from interfering in the arbitral proceedings as much as they can. Apart from some others attractive factors (convenience, neutrality, time zone, infrastructure, institutions, language) its supportive legislation and positive attitude of English Courts towards arbitration, today England has become the most popular international commercial arbitration venue. For jurisdictions struggling to build effective arbitration regimes, lessons are obvious.[32] The aim for discussing the development of arbitration regime in England and throwing light over the historical perspective was to present England as an exemplary jurisdiction regarding arbitration practices. The countries which are yet to develop such an efficient mechanism of resolving commercial disputes through arbitration should study the English journey that started decades ago. Later on, this paper would discuss the Pakistani practices as Pakistan is also a common law jurisdiction and compare it with the English jurisdiction. The object of this comparison is reformative, to provide and suggest some guidelines for the developing countries (like Pakistan) so they can quickly realign themselves with the prevailing international standards and learn from the experience of jurisdictions that have taken decades to reach to the point of excellence like England.

INTERVENTION IN ARBITRAL PROCESS: POSITION OF PAKISTANI COURTS

The law of arbitration in Pakistan is governed by the Arbitration Act, 1940 which deals with the conduct of domestic arbitrations. Foreign arbitration and enforcement of foreign award was provided in the Arbitration (Protocol & Convention) Act, 1937 based on The Hague Convention which under section 3 excluded the application of Pakistan Arbitration Act, 1940 and the Pakistan Civil Procedure Code. Section 4(2) of the Arbitration (Protocol & Convention) Act provided for the foreign awards to be enforceable and shall be treated as binding for all purposes on the parties as between whom it was made. Pakistan signed the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) on 30 December 1958 but did not ratify or incorporate the Convention into domestic law until 2005. At that time the Convention was enforced through a Presidential Ordinance. In accordance with Article 89 of the Constitution (as it stood at the time), however, a Presidential Ordinance automatically lapsed at the end of four months from its promulgation unless approved by Parliament. The Ordinance was, therefore, re-promulgated several times between 2005 and 2011 before being passed by Parliament and being enacted as Recognition and Enforcement (Arbitration Agreements and Foreign Awards) Act, 2011 on 15 July 2011, repealing the Arbitration (Protocol & Convention) Act, 1937. Pakistan already has certain legislation in the field of Family Laws relating to marital dispute where dispute must first be attempted to be resolved through mediation and conciliation and only upon failure of conciliation parties can go to Courts[33]. Similarly, under the Industrial Employment laws a union cannot resort to strike unless the dispute relating to terms and conditions of service has first been negotiated between the parties and upon failure of negotiation has been referred to a conciliator, where after only a union can resort to have the dispute settled through Court.[34] Apart from this, certain other enactments Pakistan have got the provisions for settling disputes through arbitration e.g. Co-operative Societies Act, 1925[35]; Electricity Act, 1910[36]. In order to resolve taxation dispute the Pakistan Government in the year 2004 amended the Income Tax Ordinance, the Customs Act and the Sales Tax (VAT) Act, providing for an alternate dispute resolution in cases where the assessee disputes the levy and collection of taxes.[37] According to which - The assesse can make an application to the Central Board of Revenue which will constitute a Committee consisting of an officer of the tax officials, two persons from a notified panel of Chartered/Cost Accountant. Advocates and a reputable tax payer. The Committee after examining the dispute shall make recommendations in respect of resolution of the dispute and the Central Board of Revenue on the basis of recommendations of the Committee will decide the dispute.

The Arbitration Act, 1940 is now almost obsolete in its present form as it is not well equipped to handle modern and more complex commercial arbitration disputes. There is an immense need of a new legislation so that it could provide uniformity and certainty to both the categories of arbitration, domestic as well as international commercial arbitration. Despite the fact that there was no proper legislation for the international commercial disputes, still the role of Pakistani Courts is commendable. As Justice Saqib Nisar, in his article has rightly highlighted this fact, quoted below:[38]

“Pakistani Courts have by and large supported the decision by parties to submit their disputes for resolution by a domestic forum of their own choice, especially those having an international dimension. This approach is reflected in their reluctance to interfere with the arbitral process or to overturn or upset arbitration awards. The Courts have sparingly exercised the statutory powers vested in them in this regard. The basic judicial approach has been to hold the parties to their bargain, and to enforce the arbitration agreement in letter and spirit to ensure the sanctity of the arbitral process. Thus, if a party to an arbitration agreement attempts to institute legal proceedings in a Court of law, and the other side seeks stay of proceedings on the ground that recourse should be made to arbitration, the Courts have generally been quick to allow such an application. The desire to uphold the arbitration agreement, and force the parties to resolve their disputes before the domestic forum selected by them is all the more pronounced in the case of arbitration agreements having an international dimension, i.e. Where one of the parties is a foreign national or entity”.

The sense that prevailed amongst the judiciary of Pakistan is clearly reflected by the concurring opinion of Justice Ajmal Mian (as he then was) in a 1993 decision of the Supreme Court, and his Observations deserve to be quoted at length:[39]

“I may observe that while dealing with...foreign arbitration clause like the one in issue, the Court’s approach should be dynamic and it should bear in mind that unless there are some compelling reasons, such an arbitration clause should be honored as generally the other party to such an arbitration clause is a foreign party. With the development and growth of International Trade and Commerce and due to modernization of Communication/Transport system in the world, the contracts containing such an arbitration clause are very common nowadays. The rule that the Court should not lightly release the parties from their bargain, that follows from the sanctity which the Court attaches to contracts, must be applied with more vigor to a contract containing a foreign arbitration clause. We should not overlook the fact that any breach of a term of such a contract to which a foreign company or person is a party, will tarnish the image of Pakistan in the comity of nations.... [A] ground like that it would be difficult to carry the voluminous evidence or numerous witnesses to a foreign country for arbitration proceedings or that it would be too expensive or that the subject matter of the contract is in Pakistan, or that the breach of the contract has taken place in Pakistan, in my view, cannot be a sound ground for refusal to stay a suit filed in Pakistan in breach of a foreign arbitration clause contained in contract of the nature referred to hereinabove. In order to deprive a foreign party to have arbitration in a foreign country in the manner provided for in the contract, the Court should come to the conclusion that the enforcement of such an arbitration clause would be unconscionable or would amount to forcing the Plaintiff to honour a different contract, which was not in contemplation of the parties and which could not have been in their contemplation as a prudent man of business.”

Most of the foreign awards that have come for enforcement before Pakistani Courts were filed under the Arbitration (Protocol and Convention) Act, 1937. Majority of the awards were upheld and the Courts have invariably rejected challenges and objections to their enforcement by Pakistani defendants. It is only in rare cases, where the objection is of such a nature that the defect is floating on the face of the award, and the Courts have upheld the objection and declined to enforce the award. In a decision in 1999, it was observed by a learned judge of the High Court of Sindh that:[40]

“...if Pakistan is to attain some respect in the commercial world, it is necessary that trans national commercial agreements must be honoured and judicial process must not be used merely to delay the implementation of such agreements or judicial or quasi judicial decisions passed in disputes arising from such agreements.”

The same learned Judge observed even more trenchantly in a subsequent case:[41]

“Increasingly, it is seen that the parties who are involved in Transnational or International Agreements agree to an arbitration clause at the time of entering into [the] agreement but when as a result of that agreement an award is made against them they raise frivolous objections and deliberately refrain from seeking remedy of appeal available to them under the agreement or other rules and attempt to delay or avoid payment under the award by simply initiating proceedings in a Court in Pakistan ….. I do believe this is tantamount to abuse of the process of the Court .... [and] may lead Pakistan into becoming pariah in the commercial world.”

There is a long list of case laws which shows the degree of deference accorded to arbitration clauses and some of them are worth mentioning. In Federation of Pakistan vs. Al Farooq Builders[42], the High Court of Sindh held that, ‘truly speaking the arbitrator is a judge of all matters arising out of a dispute whether of fact or law and the Court is not to act as a Court of appeal sitting in Judgment’. In President of Islamic Republic of Pakistan vs. Syed Tasneem Hussain Naqvi,[43] it was observed that, ‘the Court should always endeavor to sustain the award rather than destroy it unless it could be shown by sufficient and reliable material on the record that the arbitrator was guilty of misconduct or that the award was beyond the scope of reference or that it was violative of a statute or was in contradiction to the well settled norms and principles of law’. In case of Meredith Jones & Co through Attorney vs. UsmanTextile Mills,[44] it was held by the Supreme Court that, the award could be challenged only on the grounds mentioned in section 30 of the Arbitration Act, 1940 i.e. if the Arbitrator had misconduct himself and the proceedings were not based on merits. The Court while hearing, objections against the award could not sit as a Court of appeal against the award and interfere with it on merits.’

In Hitachi Limited vs. Rupali Polyester’s and Others,[45] on the strength of the governing law of the contract being Pakistani law, the Pakistani party to an international contract urged the Courts in Pakistan to assume jurisdiction on the validity of the arbitral award made on the contractual dispute by an ICC tribunal in proceedings held in London and to exercise jurisdiction over the composition and actions of the said English arbitral tribunal. A number of international were quoted before the Supreme Court, in particular the judgment of the Indian Supreme Court in National Thermal Power vs. Singer Co. & others.[46] The Supreme Court of Pakistan declined to adopt the view taken by Indian Supreme Court in Singer case and rejected the plaintiffs application for removal of English arbitrators in foreign arbitration.

As for the enforcement of a foreign arbitral award, certain statutory requirements were pronounced to be necessary. In Islamic Republic of Iran Shipping Lines through Attorney vs. Hassan Ali & Co Cotton (Pvt.) Limited,[47] the High Court held that requirements as laid down in rule 297 of the Sindh Chief Court Rules should be met and fulfilled by the person seeking enforcement of a foreign award, if deficient in any material particular, application for enforcement be returned for removing deficiency within time allowed by the Court. The plaintiff in this case had not also filed authenticated copy of the award. The Court held that rules provided for producing either original award or its authenticated copy. Original award having been produced, it was held that requisite conditions were fulfilled and the award was rightly made. The defendant had contended that the arbitrator had no jurisdiction; award was contrary to law and public policy and arbitrator was guilty of misconduct. It was held that no material in that respect was produced by the party. Thus, the objections were over ruled and the award was enforced.

In the case Flame Maritime Ltd. v. Hassan Ali Rice Export,[48] award was brought to the Court to make it the rule of the Court. An objection was raised that the arbitrator is guilty of misconduct for passing an ex-parte award and granting the claim of one party without taking into consideration the facts constituting the claim of the other party. Another objection was raised that awarding of’ interest on amount determined by the arbitrator is against the injunctions, of Islam, therefore, award cannot be made rule of the Court. Court after appraisal of evidence upon the first objection found that arbitrator left no stone unturned to apprise the objecting party to participate in the arbitration proceedings but the objecting party with its own free will remained away from the proceedings, hence, rejected the objection. Court while dealing with the argument of grant of interest held that the award had already become final in England, therefore, could not be nullified at the enforcement stage in Pakistan. The disposal of second argument on the ground of finality of award is a credible decision which excludes any iota of element of biasness against the foreign parties as grant of interest being in violation of injunctions of Islam could be accepted by the Court as a public policy ground, as plead by the objecting party.

In, another case titled as Metropolitan Steel Corporation Ltd v. Macsteel International UK Ltd.[49] suit for recovery of money was filed by plaintiff against which defendant raised the objection that there was an arbitration agreement between the parties to refer all the disputes to arbitration and thus requested the Court to refer the matter to arbitration. Plaintiff denied the contention and said that there was no agreement between the parties. Court looked into the detail and found that parties had agreed upon arbitration in the correspondence between them. Court stayed the proceedings of the suit in favor of arbitration and gave finding that the arbitration agreement could also be inferred from the correspondence between the parties and directed the parties to resort to terms of sale contract for the settlement of dispute.

Apart from the cases mentioned above, there are numerous other instances as well where the Pakistani Courts have upheld the sanctity of arbitration clauses. Pakistan stands in a very distinct position as compared to many other countries which are far behind in the development of modern arbitral practices and where international arbitration is the victim of judicial prejudice. There are a few exceptions[50] (which would be discussed in detail in the next chapter) to this general practice, which can take place even in reputed arbitration friendly jurisdictions but overall trend of judiciary in Pakistan is in the favor of international commercial arbitration.

PAKISTAN AN UNSAFE JURISDICTION FOR ARBITRATION: CRITICAL VIEW

Despite of a number of sound and supportive Court decisions in this field over many years as mentioned in the previous chapter, there have been a few very high profile judgments in which the Courts of Pakistan have intervened or rather undermined international arbitration. One was the infamous Hub Power Company Ltd. vs. Pakistan WAPDA and another renowned case SGS Societe Generate de Surveillance S.A. V Islamic Republic of Pakistan, that earned Pakistan a great deal of notoriety in commercial arbitration circles internationally.[51] It is really important to go through the facts of these cases briefly.

In Hub Power Company vs. Pakistan WAPDA, The Hub Power Company (or HUBCO) was supplying electrical power to WAPDA, the public sector utility, under a power purchase agreement (PPA), executed on 3rd August 1992. Schedule VI to the PPA contained the provisions about the financial model for tariff calculations and payments to be made by WAPDA to HUBCO during the thirty years life of the project. The agreement had an arbitration clause providing for ICC arbitration at London. WAPDA alleged that Schedule VI to the PPA had been revised by HUBCO through collusion and illegality without lawful agreement by WAPDA to incorporate terms that vastly inflated the tariff payments due from WAPDA. On 11th October 1998, through a termination letter, WAPDA repudiated three amending contractual documents on grounds of these being illegal, fraudulent, and collusive, without consideration, malafide and designed to cause wrongful loss to WAPDA. Prior to the issuance of this termination letter. WAPDA filed a criminal complaint (FIR) against a number of persons including its own officers alleging the commission of various offences in the procurement of the tainted amendments. Thereafter WAPDA filed a suit in Lahore for recovery of overpaid tariff amounting to Rs. 16.0 billion. HUBCO filed its suit in Karachi challenging the aforesaid termination letter by WAPDA, seeking its suspension and an injunction restraining WAPDA from adopting any judicial remedy contrary to the ICC arbitration clause in the PPA. As an additional measure HUBCO also commenced ICC arbitration proceedings alleging contractual breach by WAPDA.[52]

The matter then reached to the Supreme Court of Pakistan. The case was heard by a 5 member bench of the Court. The Supreme Court gave a divided judgment in the HUBCO case. The majority opinion by three Judges noted several facts and pieces of evidence in the case to draw the conclusion that the allegations of corruption in support of which the above mentioned circumstances do provide prima facie basis for further probe into the matter judicially. It was observed that, if proven, the allegations of criminality would render the contract documents to be void. Accordingly, on grounds of public policy it was held that the matter involving alleged criminality in the dispute was not referable. On the other hand the minority opinion given by two, learned judges took the view that the allegations by WAPDA were capable of being determined in arbitration proceedings. This view was based on the ground that the arbitration clause in the. PPA was severable and survived the allegations of illegality made by WAPDA. Reliance was placed on the English case of Harbour Assurance vs. Kansa.[53] On the matter of public policy the minority view referred the English case of Westacre Investment vs. Jugoimport[54] wherein the Court directed enforcement of the award although the underlying agreement contemplated procurement of business for the defendants through bribery. After the HUBCO decision, it was contended that the Judiciary has apparently set its face against international commercial arbitration by invoking public policy and the development of the law has been diverted into barren lands where it can only wither away.[55] The Asian Development Bank took the view that “the Supreme Court essentially restricted the freedom of investors to choose how to resolve disputes”.[56]

This decision of Supreme Court of Pakistan was criticized widely at international forums on the following grounds. Firstly it was considered a misapplication of the doctrine of separability. Secondly, it was an intervention in circumstances in which it was accepted by all parties that the arbitration agreement in question was contained in a separate agreement that was not itself the subject of any allegations of bribery, corruption or invalidity. Thirdly, the allegations of bribery and corruption had been merely asserted and the tribunal remained entirely, competent to investigate the same. The last criticism upon this decision was that, the proper time for the Courts of Pakistan to interfere could only have been if and when an award was brought to Pakistan for recognition or enforcement.

The other widely discussed case that too received a lot of criticism was SGS Societe Generale de Surveillance S.A. v. Islamic Republic of Pakistan.[57] This case concerned a claim filed by SGS against Pakistan arising from an alleged breach of a contract dated 29 September 1994 under which SGS was to provide Pakistan with certain pre-shipment inspection services for goods to be exported from various countries to Pakistan (“PSI Contract”) and a related breach of the Pakistan-Switzerland BIT dated 11 July 1995. SGS initially filed a commercial claim in the Swiss Courts in January 1998. The claim was unsuccessful and SGS’s final appeal was rejected by the Federal Tribunal in November 2000 as well. Shortly before the decision of the Federal Tribunal, however, Pakistan filed an application under section 20 of the Act, 1940 in a trial Court in Pakistan seeking the referral of the dispute to arbitration under the terms of the contract. While Pakistan’s application was pending, on 12 October 2001, SGS initiated ICSID arbitration proceedings. On 4 January 2002, SGS also filed an application before the trial Court in Pakistan asking it to stay the proceedings in view of the initiation of ICSID arbitration. The trial Court rejected SGS’s application and its appeal before the High Court was also dismissed on 14 February 2002. SGS then appealed to the Supreme Court. Pakistan filed its own appeal before the Supreme Court seeking to restrain SGS from pursuing the ICSID arbitration.

On 7 March 2002, SGS applied to the ICSID tribunal for provisional measures seeking to stay the local arbitration proceedings initiated by Pakistan and requiring Pakistan to withdraw its application before the Supreme Court for stay of the ICSID proceedings. On 15 March 2002, the Supreme Court issued an interim order staying both the local and ICSID arbitration proceedings and restraining both parties from pursuing them further until the Court decided the appeals. While the matter was pending before the ICSID tribunal, on 3 July 2002. the Supreme Court announced its judgment rejecting SGS’s appeal while accepting Pakistan’s. The Court restrained SGS from pursuing or participating in the ICSID arbitration and further held that Washington Convention was not part of the municipal laws of Pakistan so no reliance could be placed on the same to defeat the express agreement between the parties to arbitrate at Islamabad under the 1940 Act. On 16 October 2002, the tribunal issued Procedural Order No. 2 on SGS’s application for provisional measures. The tribunal ordered Pakistan not to pursue the contempt application against SGS before the Supreme Court for any violation of its judgment and recommended a stay of the local arbitration until the tribunal issued its decision on jurisdiction. Pakistan thereafter withdrew its contempt application against SGS.

On 6 August 2003, the tribunal issued its Decision on Objections to Jurisdiction, holding that while it had jurisdiction to hear claims arising under the Pakistan-Switzerland BIT, it did not have jurisdiction to hear claims arising from the contract. After the tribunal’s decision, on jurisdiction, the parties settled the matter. Under the terms of the settlement, SGS agreed to make a lump-sum payment of US$ 2,000,000 towards the legal expenses of Pakistan and also agreed to make available a pilot version of its software to Pakistan. Furthermore, it issued a written apology to the President of Pakistan in respect of certain payments made by former employees of SGS. On 23 May 2004, the tribunal made an order for discontinuance of the proceedings.[58] After SGS Societe Generate de Surveillance S.A. V Islamic Republic of Pakistan case. Pakistan became the first country who’s Supreme Court has issued an injunction against an ICSID arbitration which is a form of arbitration that by international convention (signed and ratified by Pakistan) may not be subject of any interference by national Courts. So in this case as well, Pakistani Courts were criticized for providing injunction and restraining the parties to participate in ICSID arbitration proceedings. These were the two most renowned cases that brought a bad name to Pakistan being an unsafe jurisdiction for international commercial arbitration. No doubt that such instances should had been better addressed by the Pakistani Courts but it’s never too late to get back on track.

REALIGNMENT OF PAKISTAN WITH PREVAILING NORMS IN INTERNATIONAL ARBITRATION

The political affairs of Pakistan have constantly been fluctuating ever since it came into being. Sixty-six years of Pakistan’s history is marred with intrigues, illegitimate use of power and persistent interference in politics by both civil and military establishments.[59] The constant interference of democratic rule and bringing down of elected governments has to a great extent weakened the political as well as judicial institutions. A comparative analysis between military and democratic rule clearly demonstrate that a limited leverage has been enjoyed by civil governments as compared to military regimes.

If we study the role of Pakistan’s judiciary in the past 66 years, it is not very impressive rather it is more controversial. Judiciary in Pakistan has legitimized the military takeovers, allowing the dictators to subvert the constitution and adopt a compromised approach towards military rules. The two cases (Hubco and SGS) that have been mentioned in the previous chapter also took place during the era of a military dictator. A common element in both the cases was that in these cases, state or the state interest were directly involved. As it was a dictatorial regime, the element of influence upon the judiciary cannot be overlooked.

In March 2007, the dictator sacked the Chief Justice of Pakistan along with other judges of the Supreme Court and had put them under house arrest along with their families. This caused a great amount of disturbance and anger amongst the legal fraternity throughout the whole country. The lawyers of Pakistan started agitation against Gen. Pervaiz Musharraf (then the President) which was famously known as “Lawyer’s Movement”.[60] As a result of this movement. President Musharraf’s era came to an end and a new democratic government came to power which restored the deposed Chief Justice and other judges of the Supreme Court of Pakistan. The general impression now is that, the judiciary is independent and the recent bold decisions of the Supreme Court of Pakistan against government depict that judiciary will uphold the law at any cost and in all circumstances. So it is the best opportunity for Pakistan to realign itself with the prevailing norms in international arbitration. The receptivity of top judicial body towards arbitration system negates the existence of element of bias for arbitration in the mindset of judiciary.

The recent example is the National Judicial Conference held from 13-15 April 2012. It was presided over by the Chief Justice of Pakistan. The conference was attended by Judges of Supreme Court, Chief Justices and the judges of High Courts, international legal luminaries, members of district judiciary and the office bearer of bar councils and bar associations. Amongst the eight thematic groups which were formed to be discussed by the participants, one of them was “Alternate Dispute Resolution and International Arbitration”.

In this inaugural address, the Chief Justice of Pakistan, Mr. Iftikhar Muhammad Chaudry asserted the importance of alternate dispute resolution. Quoting him:

“Amicable resolution of disputes is a desirable objective of the administration of justice, permissible by law and strongly recommended by the injunctions of Islam. The delay in the delivery of justice not only causes agony and suffering to litigants but also adversely affects the socio-economic activities in the country. The alternate to the formal system of administration of justice is system of Alternate Dispute Resolution. It provides justice in less formal yet efficient manner. This system of dispute resolution has earned great recognition all over the word. Keeping in view the potential in delivering inexpensive and expeditious justice, the system of ADR has been introduced in Pakistan in a codified form. Although this is passing through an evolutionary process, yet the results are encouraging. Our predominant adversarial culture, demands for the introduction of new ways and means to create public awareness, acceptability and confidence for promotion of ADR mechanism. Judges should also be educated regarding this newly emerging mechanism. Conscious of the role of ADR in expeditious justice, the Presiding Officers were directed to strive at every material stage of the proceeding to induce, in a very non-intrusive manner and subject to the consent of the parties to settle their disputes through ADR without wasting time and money on protracted and contested litigation. The Courts’ are encouraged to apply the Small Claims and Minor Offences Ordinance, 2002 and other enabling provisions in law. To be effective, the Bar members need to extend helping hand in the process by bringing about awareness and encouraging their clients to avail the option.”[61]

In the same conference, Mr. Justice Shakir Ullah Jan, while addressing the topic of ‘Alternate Dispute Resolution and International Arbitration’, expressed his views in the following words: “Need for the resolution of disputes, shortage of the Courtrooms and other ancillary issues have increasingly made it imperative for lawyers and business community to resort to techniques and methods to resolve disputes out of Court. A working group has been formulated to deal with Alternative Dispute Resolution and International Arbitration to evolve effective strategies for implementation of arbitration mechanisms at national and international levels. Another working group will formulate recommendations regarding reforms in judicial education as we are certain that this Conference will provide a forum for the Federal Judicial Academy, Islamabad and similar Academies/Institutions around the world to create a relationship which would be mutually enriching and interactive; it would also provide an opportunity to national as well as international academies who maintain a sustained interest in Pakistani law, to meet each other and develop collaborative relationships; and to promote greater interaction and exchange of ideas between the judiciary and the legal academia.”[62]

So the mindset of top judicial body of Pakistan is worth noting that how much aware they are of the importance of growing economic activities and need for quick disposal of commercial disputes though Alternate Dispute Resolution. The National Judicial Policy, 2009 emphasizes the expeditious disposal of cases.[63] To meet that objective it. inter alia, suggests that Courts should adopt the following measures in civil cases: “The Courts should make use of section 89A [Civil Procedure Code] (“CPC”) to resolve disputes through Alternate Dispute Resolution (ADR) including conciliation, mediation and arbitration or any such other appropriate mode.”[64]

This policy has been followed in a number of recent Court judgments. For example, the Karachi High Court in a recent case held that under Section 89-A, CPC the Court might adopt any alternate method of dispute resolution including mediation, conciliation or any other means including arbitration for bringing an end to the controversy and expediting disposal of the case by the consent of parties.[65] Similarly in another case, the Lahore High Court noted the preference of the parties to resort to amicable means for dispute resolution in corporate matters and acknowledged the fact that almost all commercial contracts contain clauses as to negotiations etc. for amicable resolution of disputes. The Court in this case went on to suggest that Courts are also expected to encourage the parties to adopt such modes in view of provisions of Section 89-A, CPC. According to the Court, this is now a universally accepted method being followed as a less expensive, less time consuming, less cumbersome and ultimately a fruitful and beneficial mode, commonly known as ADR.[66] This sentiment was echoed in another Lahore High Court case, wherein the Court held that the resolution of dispute by way of compromise, being a recognized mode, relieves parties of expensive and lengthy agonizing litigation and saves valuable time of Court.[67] Likewise, the Peshawar High Court has also held that small claims could also be referred to ADR under Section 89-A, CPC and issues could be resolved through mediation and arbitration.[68]

Although the judicial policy was intended to apply to lower Courts, there is mounting evidence that it is being followed by High Courts as well. However, the value of this developing judicial practice is diminished by the fact that arbitration is considered to be an alternative dispute resolution mechanism to overcome the inability of the Courts to provide timely justice. As aptly stated by Mr. Justice Tassaduq Hussain Jillani:

“The growth of ADR in the last few decades on the one hand reflects disenchantment with the formal justice system characterized by delays and on the other an effort to promote a less formal dispute resolution mechanism. This development is not the outcome of any juristic philosophy. Rather it was necessitated by the growth of commercial litigation needing speedy resolution. by the ever increasing volume of Court work, by Court dockets becoming heavier and by the judge/case ratio getting inbalanced on account of limited resources. Therefore, one has to go beyond the judicial policy objectives and procedural expediency to see how the superior Courts in Pakistan have dealt with arbitration conceptually. Analysis of judicial precedents is necessary to determine the efficacy of arbitration in Pakistan.”[69]

It was not until recently, Pakistan has promulgated Recognition and Enforcement (Arbitration Agreements and Foreign Awards) Act, 2011, which gives effect to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) 1958. Along with the adoption of New York Convention. Pakistani legislature has also contemporaneously enacted the Arbitration (International Investment Disputes) Act, 2011 in order to implement the International Convention on the Settlement OF Investment Disputes (ICSID Convention) 1958.

The Arbitration Bill, 2009 was introduced in the National Assembly of Pakistan on 24^th April 2009. In its preamble, the bill aspires to implement the UNCITRAL Model Law on International Commercial Arbitration into Pakistan. Till present, the bill is still pending in the parliament because of the debate that triggered amongst some jurists that the pending bill is a modified version of the Indian Arbitration Act, 1996. It is being suggested that some more changes and amendments should be made to the bill, keeping in view the problems being faced in India after the implementation of the similar bill as pending in the parliament. This healthy debate shows the level of awareness that is found now in Pakistan regarding alternate dispute resolution. especially international commercial arbitration.

CONCLUSION

The criticism that Pakistan faced by the international arbitration community on the two renowned judgments[70] (HUBCO and SGS) made by the Supreme Court was unduly harsh. The judgments and the principles upon which those judgments were given, those reasons were overlooked. If the facts of both the cases are observed in detail, one would come up with a different view. Like in HUBCO case that concerned the important question of the arbitrability of criminal matters. The majority judges in HUBCO case were careful to note expressly that the disputes raised by WAPDA were not commercial in nature, but were such as raised very serious public policy issues which were essentially criminal in nature. Thus, although in this case the Supreme Court did interfere with the arbitral process, it did so reluctantly (as indicated by the strong dissenting judgment) and drew a clear line with regard to commercial matters in respect of which arbitration proceedings would not be stopped. A considered judicial comment that is contemporary to the HUBCO case was made by the English Court of Appeal as well in the case of Soleimany v. Soleimany[71] on the effect of palpable illegality of a contract on the prospect of arbitrability of a dispute under such a contract. It was observed that the legality or illegality of a contract would determine whether the dispute should be resorted to arbitration or whether the Courts should deal with the dispute. A Court may, on the ground that arbitration cannot law fully enforce a contract neither can it enforce an illegal contract, refuse to transfer a dispute to arbitration. The aim behind this was that the Courts wanted to preserve the integrity of its process, to save it from abuse. Public policy would not allow that an illegal contract be disputed through the means of arbitration.[72] Public policy plays a major role in determining whether a dispute should be referred to arbitration or not. An illegal contract cannot be referred to arbitration for arbitration. Only national Courts have the power to decide on such disputes.

The settled law of Pakistan is that matters involving questions of criminality or public policy cannot be referred to arbitration: Ali Muhammad etc Vs Basheer Ahmad,[73] Manzoor Hussain etc. Vs Wali Muhammad etc[74]. In any event, the effect of illegality or violation of public law is a matter to be adjudicated by a Court of law and not by a private forum as Justice Umar Ata Bandial. Chief Justice of Lahore High Court, has rightly addressed this issue in the following words:[75]

“Our jurisprudence prescribes and ensures that commercial contracts executed by statutory or public bodies satisfy the procedural standards of propriety laid down by mandatory laws and rules. Thus the criteria applied consistently by the superior Courts to assess the validity of disputed public contracts include, for example, the requirements that only a competent authority may sign a contract, on which consents and approvals prescribed by law have been duly secured and disclosures prescribed by law have been duly made, that benefits given to contracting parties are conferred transparently. These safeguards are mainly of a procedural nature and are applied in public interest on duly notified criteria laid down by statutory laws and regulations or under settled law declared by the Hon’ble Supreme Court. To meet the prescribed standards is the duty of the contracting parties. These should figure on the routine check-list in precontractual due diligence performed by any private contracting party Foreign contracting parties that fail to meet these standards should not therefore complain about its consequences. The mandatory procedural safeguards arc applied by the Courts as a matter of public policy of the law of Pakistan. If an international commercial contract fails the mandatory legal tests prescribed for its validity, it would be farfetched to suggest that the question of contractual invalidity and its effects should be left to determination by an arbitrator under a foreign arbitration clause. Indeed the violation of public policy is not a commercial dispute under the contract but de hors such contract. The best judge in a matter of public policy is a Court of law. This approach follows as a matter of ordinary prudence and should not be characterized as judicial intervention in the dispute resolution mechanism of an international commercial contract.”

Therefore, notwithstanding the sound and fury that the HUBCO ease generated, given the prima facie factual inferences drawn by the majority judgment, the Supreme Court of Pakistan arrived at a conclusion that is consistent with the principles of both domestic law as well as private international law.[76] Later on, WAPDA and HUBCO settled their disputes amicably. After giving WAPDA a favorable adjustment in the tariff, HUBCO remains a high profit earner and a leader on the National Stock Exchanges.[77] The law as developed subsequent to the HUBCO case has not shown any deviation by the Courts from the principles laid down earlier and the general trend of judicial authority as noted above and the HUBCO case can be regarded as turning of its own special facts.[78] The Courts have been diligent in holding Pakistani entities to their end of the bargain in terms of agreements having an international dimension and which contain arbitration clauses or agreements.[79]

Similar is the scenario in the SGS case as well. The whole facts of the case were over looked by international arbitration community, and this time, it was the foreign party (SGS) that attempted to walk away from the contract.[80] But the Courts were very stern in order to prevent such a breach of agreement. The contract there provided for arbitration at Islamabad under the 1940 Act. SGS. which had a claim of several million dollars against Pakistan, attempted to litigate the claim in Swiss Courts, but the latter were equally firm in holding the company to its contract to arbitrate in Pakistan. An application was made by Pakistan in the civil Courts under the 1940 Act seeking to take the dispute to arbitration. SGS however, proceeded to file its claim for arbitration under the ICSID convention. On the basis of a Bilateral Investment Treaty entered into between Pakistan and Switzerland. Pakistan objected to such an arbitration on the ground. inter alia, that the Washington Convention of 1965 under which the ICSID operated had not been incorporated into Pakistani municipal law. Interestingly, SGS, the foreign party relied on the HUBCO case, and contended that arbitration in Pakistan could not proceed as there were allegations of fraud, corruption and mala fides against it.[81] The stand taken by SGS was obviously self-contradictory: it did want arbitration, but on its own terms, i.e. outside of Pakistan, and not in terms of the actual arbitration agreement entered into between the parties with called for arbitration at Islamabad. An attempt was therefore, made to transform the HUBCO case from a shield into a sword. This attempt failed. The Supreme Court held that the dispute between the parties was wholly within the four corners of the contract, i.e. was commercial in nature (the Government having expressly stated that it would not press any claims in the nature of corruption and fraud) and hence the HUBCO decision had no application to the facts and circumstances of the case. It was further held that since the Washington Convention was not part of the municipal laws of Pakistan, no reliance could be placed on the same to defeat the express agreement between the parties to arbitrate at Islamabad under the 1940 Act.[82]

One can agree on the point that the cases like HUBCO and SGS should have been better addressed by the Courts or one can criticize the timing or manner in which these cases were handled, but it would be unjust to completely ignore the overall judicial stand of Pakistani Courts. Like many other jurisdictions, the things here in Pakistan are not ideal or perfect for international commercial arbitration. Still Pakistan has to go a long way to improve the things. Pakistan was in political isolation after the terror attacks on the World Trade Tower on 9/11, but is trying to surpass that and come out of its effects. Thus, it can be said that the economic condition of Pakistan is also improving and will be much better with the increased international trade and commerce and investment activities. In order to take advantage of this upcoming opportunity. Pakistan should review and strengthen its legal and institutional framework for trade and investment, of which arbitration is an important element, as foreign businessmen and investors usually prefer arbitration as an alternate method of dispute settlement in place of litigation.[83]

People who have their cases pending in litigation before the national Courts would not want such political, economic and legal instability to affect their proceedings. They would prefer a means which is free from any outside influence. Thus, they resort to Arbitration. Resolution of international commercial disputes through arbitration is more favourable than it would be through litigation. There are several reasons for this. Some of the reasons include: Arbitration prevents the matter from being aggravated as the matters are resolved without blowing them out of proportion; it is more private than Court room litigation as if the disputes are being behind closed doors without anyone else, other than the parties, knowing about it: it helps preserve future relationships between the parties by solving their disputes amiably it proves to be more faster and economical than litigation; and also for arbitration is a confidential process which protects the parties from loss of reputation and also from disclosure of important and private information.[84] Thus, Arbitration proves to be more favorable process for dispute resolution in international commercial disputes. As discussed earlier, the Arbitration Act in Pakistan has gone obsolete and provides for numerous instances where a Court may intervene in arbitration proceedings and thereby disrupting the process. The Act provides excessive opportunities and instances where a Court may intervene in arbitration. Some instances when a Court may intervene are:

• appoint arbitrator or arbitrators where the parties fail to appoint, or replace the arbitrator if he neglects to perform his duties;[85]

• replace an arbitrator in certain circumstances;[86]

• power to pass interim orders;[87]

• power to modify an award;[88]

• power to remit the award;[89]

• power to supersede arbitration;[90]

• set aside the award;[91]

• extend time of proceedings.[92]

It can be said that too many powers may lead to delay in the arbitration process and can exploit and disrupt the proceedings. So measures to decrease the role of Courts and increase in the use of arbitration can help to reduce the workload of Courts and reclaim competence.

Following are the areas that need to be developed for Pakistan to become a more attractive country for international arbitration:[93]

1. Development of Procedural law of Arbitration;

2. Development of Arbitration Institutions;

3. Enforcement of Foreign Awards;

4. Availability of Training Facilities to Students and Lawyers to seek Expertise in the field of Arbitration.

1. Development of Procedural Arbitration Law:--The procedural law is of utmost importance in international commercial arbitration. It describes the procedure which did to be followed in arbitral proceedings so that the parties have a smooth arbitral process without any obstacles and problems. The arbitration laws of every country contain provisions for the arbitrators to follow for conducting the arbitration proceedings and also allow the freedom to the parties and the arbitrators to determine the procedure, where it is not specifically provided.[94] But the Arbitration Act of Pakistan suffers from many flaws and ambiguities. It does not address a number of vital points, which are of core importance in the modern arbitration laws. Such as, lack of power of tribunal to decide upon its own jurisdiction, grant of interim measures by the tribunal and privacy and confidentiality of arbitration proceedings, grant of interest by the tribunal, provision for an amiable compositeur and ex acquo et bono, etc.[95] Lack of developed procedural law of arbitration, not only leaves Pakistan far behind in international arena of arbitral practices but gives an image of being an unfriendly jurisdiction for the international arbitration to the foreign parties. Also, this lack of a proper and developed procedure provides the opportunity to the national Courts to fill in the gaps which in turn leaves a lot of power in the hand of the national Courts. Therefore, it is very important to have a developed procedural law which is suitable for the commercial disputes of international arena.

2. Development of Arbitration Institutions:--there are two prominent and important arbitration institutions in Pakistan, one being the “Chamber of Commerce and Industry of Karachi’ and the other being the ‘Federation of Pakistan Chamber of Commerce and Industry’. But despite being the two most prominent arbitral institutions both these institutions attract two to three cases on an average every year since their inception in 1959 and 1960 respectively.[96] The Federation of Pakistan Institute has entered into bilateral agreements for arbitration with the American Arbitration Association and the Japan Commercial Arbitration Association, which operate by means of so-called joint arbitration clauses’.[97] However, this doesn’t quite provide an incentive to foreign parties to choose Pakistan as a venue for international commercial arbitration. In 2009 an attempt was made to establish an arbitration institution in Lahore on the style and pattern of London Court of International Arbitration (LCIA) with the name Alternative Dispute Resolution Centre (ADRC). The institution was shut down due to an extremely poor response to it.[98] No steps so far have been brought on public record which should be taken to invite the International Organizations e.g. International Chamber of Commerce (ICC), International Centre for Dispute Resolution (ICDR) etc., to create their arbitral venues in the country.[99] This shows the poor infrastructure for international Commercial arbitration which is why there is such poor response in terms of the cases that come for arbitration in this country. This can only be surpassed if more arbitral institutions are established in this country and are given a proper infrastructure and when Pakistan is made attractive as a venue for international arbitration.

3. Enforcement of Foreign Awards:--Pakistan being a member state of the New York Convention is under an obligation to enforce the foreign commercial awards. Before the enactment of the New York Convention it was ratified by Pakistan through an Ordinance[100] and the foreign awards were enforced, for the encouragement of international arbitration in Pakistan, any technicalities or infirmities coming into the way of enforcement of award should be bypassed and the spirit of the New York Convention must be given effect. It has been observed that in some cases of international arbitration, the lawyers do not provide the Courts with the proper assistance upon the points of international arbitration. The Courts generally give their verdict on the basis of materials available in front of them and rarely appoint amicus curiae in these cases to seek proper brief upon the complex issues of international arbitration. To be in line with the international arbitral practice, the Pakistani Courts should be more willing and more enthusiastic when dealing with such eases so as to be more arbitration friendly. This would also give an impression to the international community that Pakistan is becoming more attractive as a venue as it won’t interfere with recognition and enforcement of foreign arbitral award. If this is successfully done then a major hurdle would be cleared.

4. Training Facilities for the Students and the Lawyers to Seek Expertise in International Arbitration:--Pakistan has got no training institutions organized for providing training to the lawyers and the students for the development of arbitration skills.[101] As a matter of fact no efforts at a large scale have ever been made to develop international arbitration in the country by providing opportunities to the students and lawyers to seek expertise in it.[102] It seems that the Pakistani government is absolutely oblivious of the fact that this stream of dispute resolution needs to be taken care of needs to be developed and needs a new and proper infrastructure which is only possible if the present and future (law students) lawyers are trained intrinsically. Gorden Jaynes, has criticized this situation of Pakistan pointing out that, ‘International Development Law Organization (IDLO) has been offering services on the development of international arbitration for twenty years. More than 60 lawyers from Pakistan are the alumni of IDLO’s various training programs, who can offer services of training to the students in the field of international arbitration. IDLO has also got its distance learning programs, for students and lawyers of developing countries from all over the world. International Islamic University of Islamabad has been offering a program of dispute settlement of WTO and recognition and enforcement of foreign arbitral awards. If the University is so proposed, another training program of international arbitration can also be initiated with the same resources available to the University but what appears is the lack of initiative and interest to start any program of this nature.’[103] Therefore, it is important to note here that a compulsory arbitration training institution is the need of the hour in Pakistan, which provides information and knowledge about how international commercial arbitration can be developed, how a proper infrastructure can be provided to it and most importantly what all needs to be changed to make Pakistan an attractive venue for international arbitration.

The development of international trade, commerce and investment in a developing country like Pakistan is of prime importance. For the maintenance of such development in the field of international trade and commerce it is important that the dispute resolution of international commercial disputes should be impeccable and without any flaws. The foreign investors should not lose faith in the legal system of the country they are investing it as this can have negative effects. If the foreign parties do not trust the legal system of the nation they are trading with then they will think twice before such trade, as they wouldn’t want to be stuck in dispute resolution for years and years. They would prefer a safer jurisdiction where in case of any dispute they would be able to solve them amiably without any problems and delays. Thus, for the development of trade and commerce and investment, a perfect dispute resolution system in needed to re-gain and maintain the trust of the foreign parties in the legal system of Pakistan.

Coming towards the end of the discussion, the main question is what scale of judicial intervention should be allowed in international commercial arbitration. Parties in arbitration want a prompt, less expensive and final resolution of the dispute, whilst states also want to ensure, that the arbitral process is just and impartial.[104] Arbitration must be free from the control of national Courts; but at the same time it cannot be denied that to be completely effective arbitration also needs the support of national Courts. The involvement of Courts begins even before the arbitral tribunal is established. The Courts then enforce arbitration agreements for the arbitral process to start; during the pendency of the arbitration itself, it issues interim orders and at the end of the arbitration, it either recognizes and enforces, or set aside arbitral awards.[105] Though arbitration is private in nature but still it cannot exist in a vacuum. The relationship between the national Courts and arbitration is such that both must exist together. The arbitrators and the parties must give national Courts due respect because it is the national Courts that ultimately hold the keys to recognition and enforcement. If national Courts refuse to provide the nourishment and sustenance sought at the right time and in the right place, the giant squid of international arbitration might be forced into shallower waters, where it will inevitably find itself in peril.[106] The Courts should also respect the intent of the parties to settle their disputes at a private forum and to hold the parties to their part of bargain. If the parties had the intent to involve national Courts in their dispute resolution, they would have opted for litigation rather than arbitration: the Courts should keep this in mind. However, at the same time it must be kept in mind that absolute freedom cannot be provided to arbitration as it would lead to arbitrariness and may lead to exploitation. Thus, Pakistan stands in a very distinct position in comparison with other countries in the sense that the arbitral practices are not very advanced and not very developed to meet all the requirements of the international commercial arbitration community. But at the same time it should be kept in mind that there is no judicial prejudice against arbitration in this country. Even though there are instances of excessive Court intervention as discussed earlier but such instances are very few. The impression of these few instances should not be carried forward to all the international commercial arbitration practices in this jurisdiction. The Courts and the legal system of Pakistan are quite welcoming towards alternate dispute resolution systems. The Courts of Pakistan have never shown an interventionist attitude, despite the fact that the present Arbitration Act, 1940 provides a lot of room for such intervention. The national Courts do not interfere with each and every international commercial arbitration proceeding. There certainly are some areas that need to be improved to bring Pakistan amongst one of the leading arbitration friendly jurisdictions, but to grant Pakistan the title of being an unfriendly jurisdiction for international commercial arbitration is unjustified and a bit too extreme. Pakistan is capable of being one of the friendliest jurisdictions for international commercial arbitration; all that is needed is a better infrastructure and arbitration laws that are in line with international standards.

BIBLIOGRAPHY

PRIMARY SOURCES

LEGISLATIONS:

1. Arbitration Act, 1979

2. Constitution of Pakistan, 1973. Article 2

3. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958,

4. Cooperative Society Act, 1925

5. Electricity Act, 1910

6. Family Courts Act, 1964

7. Industrial Relations Ordinance 2008

8. National Judicial Policy, 2009, revised edition 2011

9. The Income Tax Ordinance, 2001, as amended by the Finance Act, 2004

CASES:

1. A. Meredith Janes Co. Ltd v. Crescent Board Ltd (1999) CLC 437, 441

2. Ali Muhammad etc. v. Basheer Ahmed 1991 SCMR 1928

3. Conticotton S.A. v. Farooq Corporation and others (1999) CLC 1018, 1022-23.

4. Dallah v. The Ministry of Religious Affairs. Govt. of Pakistan [2010] UK SC 46

5. Dr. Mrs. Yasmeen Abbas v. Rana Muhammad Hanif (2005) PLD 742 Lahore

6. Eckhardt & Co. GmbH vs. Muhammad Hanif (1993) PLD SC 42. 52

7. Federation of Pakistan v. Al Farooq Builders (2001) MLD 99

8. Flame Maritime Ltd. v. Hassan Ali Rice Export (2006) CLD Karachi 697

9. Harbour Assurance v. Kansa [1993] 1 Lloyd’s Rep, 455

10. Hitachi Limited v. Rupali Polyester’s and Others (1998) SCMR 1618

11. Hub Power Company Ltd v. Pakistan WAPDA (2000) PLD SC 841

12. Islamic Republic of Iran Shipping Lines through Attorney v. Hassan Ali & Co Cotton (Pvt.) Limited (2006) CLD 153

13. Kill v. Hollister I. Wilson 129 (1746)

14. Manzoor Hussain etc. v. Wali Muhammad etc PLD 1965 SC 425

15. Meredith Jones & Co through Attorney v. UsmanTextile Mills (2002) CLD 153.

16. Messrs. Alstom Power Generation v. Pakistan Water and Power Development Authority (2007) PLD 581 Lahore

17. Metropolitan Steel Corporation Ltd. v. Macsteel International UK Ltd. PLD 2006 KAR 664.

18. Muhammad Ramzan v. Afridi Variety Center (2005) PLD 269 Peshawar.

19. National Thermal Power v. Singer Co. & others [1992] 2 Comp. L.J. 256

20. President of Islamic Republic of Pakistan v. Syed Tasneem Hussain Naqvi (2004) SCMR 590

21. Societe Generate de Surveillance S.A. v. Pakistan (2002) PLD SCMR 1694

22. Soleimany v. Soleimany [1999] QB 785

23. U.I.G. (Pvt.) Limited v. Muhammad Imran Qureshi (2011) CLC 758 Karachi

24. Vynior’s Case 4 Eng Rep 302 (1609)

25. Westcare Investment v. Jugoimport [1998] 4 All ER 570

SECONDARY SOURCES

BOOKS:

1. Bansal A, Arbitration and ADR (first published 2005, Universal Law Publishing Co. (Pvt.) Ltd. 2009)

2. Bhandari U, Naqvi F, Riaz I, ‘Pakistan’, Asia Arbitration Handbook, edited by Michael J. Moser and John Choong (2011, Oxford University Press)

3. Gordon D, Secession, State & Liberty (first published 1998. Transaction Publishers 2009)

4. Lew J, Mistelis L, Kroll S. Comparative International Commercial Arbitration (first published 2003, Kluwer Law International, Hague, 2003)

5. Malhotra OP and Malhotra I, The Law and Practice of Arbitration and Conciliation (first published 2002, LexisNexis)

6. Moses L. M, The principle and practice of International Commercial Arbitration (first published 2008, Cambridge University Press)

7. Paulsson J, International Handbook on Commercial Arbitration: National reports and Basic Legal Texts, (Kluwer Law International, 1984, Supplement No. 69)

8. Sanders P (ed), Yearbook Commercial Arbitration 1980. Volume V (1980. Kluwer Law International)

ARTICLES:

1. Asouzu A, ‘The National Arbitration Law And International Commercial Arbitration: The Indispensnbility of The National Court And The Setting Aside Procedure’ (1995) 7 Afr. J. Intl’l & Comp. L. 68

2. Carbon G, ‘The Interference of the Court of the Seat with International Arbitration’ (2012) J.Disp. Resol. 217

3. Chukwumerije O, ‘Judicial Supervision of Commercial Arbitration” (1999) 2 Arbitration International Vol.15

4. Hassan T, ‘International Arbitration in Pakistan, A developing country perspective” (2002) 19(6) Journal of International Arbitration

5. Hussain R, ‘International Arbitration in Pakistan’,

<http://ranarizwanhussain.wordpress.com/2013/04/10/
international-arbitration-in-pakistan/>

6. Jaynes G, ‘International Arbitration in Pakistan: A Janusian Perspective” (2004) 1 Journal of International Arbitration Vol 21

7. Justice Nisar S, ‘ International Arbitration in the context of Globalization: A Pakistani Perspective”. <littp://www.supremecourt.gov.pk/ijc/Articles/8/2.pdf>

8. Khan A, ‘Arbitration /ADR versus Litigation’ (Pakistan WSG Submission. 4 September 2006), <http://www.hg.org/articles/article_l 530.html>

9. Khilfi U, ‘The Lawyer’s Movement in Pakistan’ (Movements. 29 April. 2011). <http://www.movements.org/case-study/entry/the-lawyers-movement-in-pakistan/>

10. Malik M, ‘Political Transitions and Instability in Pakistan’ (Lets start-thinking). <http://www.lelsstartthinking.org/history/political-transitions-and-instability.asp>

11. Marful-Sau S, ‘Can international commercial arbitration be effective without national Courts? A perspective of Courts involvement in international commercial arbitration’, <http://www.dundee.ac.uk/cepmlp/gateway/files.php?filecepmlp_car13_4_635429854.pdf.

12. Monjur M, ‘An Analysis on the practices of Prophet Muhammad (PBUH) in resolving conflicts’ (2011) Journal of the Bangladesh Association of Young Researchers (JBAYR). Volume 1, Number 1, January 2011

13. Prof. Lew J QC. ‘Does National Court Involvement undermine the International Arbitration process’, 24 Am. U. lnt’l L. Rev. 489

14. Rashid H, ‘Resolving commercial disputes through arbitration and ADR in Pakistan’, <http://www.dundee.ac.uk/cepmlp/gateway/files.php?file=cepmlp_carl3_l_654222172.pdf>

15. Rowley J and Swaroop S, ‘The Role of the Judiciary in International Arbitration-The benefits of Support : Recent English Experience’ (2009) 10 Bus. L. lnt’l 272

16. Siddiqa A, ‘Looking back at the Lawyer’s Movement’ The Friday Times, Pakistan Issue – March 23-29, 2012 Vol. XXIV No. 6, <http://www.thefridaytimes.com/beta2/tft/article.php?
issue=20120323&page3>

17. Sir Ramsey V, ‘The conflict between local Courts and international arbitration’ (2012). <http://www.londonarbitrators.org/sites/default/files/
editior/Sir%20Vivian%20Ramsay%20presentation%2025%20April%202012.doc>

18. Xavier G, Evolution of Arbitration as a Legal Institutional and the Inherent Powers of the Court, ASLI Working Paper, No. 009, February -2010, < www.law.nus.sg/asli/pub/wps.htm>

REPORTS/SPEECHES:

1. Justice Bandial U, ‘Limitations on Arbitrability of International Commercial Disputes Under Pakistani Law’ addressing the fiftieth year of establishment of Supreme Court of Pakistan, <http://www.supremeCourt.gov.pk/ijc/Articles/8/l.pdf>

2. Kabraji K, ‘Hubco v. Wapda: Allegations of Corruption Vitiate International Commercial Arbitration: The Pakistan Experience’ prepared for the 17th LAWASIA Biennial conference at Christchurch, New Zealand, <http://www.lawyers.org.nz/conference/pdf%20files/KabrijiSal7and25.pdf>

3. Lord Mustill, ‘Comments and Conclusions in Conservatory Provisional Measures in International Arbitration’ 9th Joint Colloquium (1993, ICC Publication)

4. ‘Judicial Independence Over view and Country-level Summaries’, Asian Development Bank Judicial Independence Project RETA No. 5987, submitted by The Asia Foundation, October 2003

5. ‘Report on International Judicial Conference, 2012’, International Judicial, Conference, Secretariat, Law and Justice Commission of Pakistan (13-15 April, 2012)

-----------------------------

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[1]. OP Malhotra and Indu Malhotra, The Law and Practice of Arbitration and Conciliation (first Published 2002, Lexis Nexis) Foreword.

[2]. Lord Mustill. “Comments and Conclusions in Conservatory Provisional Measures in International Arbitration 9th Joint Colloquium (1993, ICC Publication) 118.

[3]. Giulia Carbon. ‘The Interference of the Court of the Seat with International Arbitration’ (2012) J. Disp, Resol. 217, 217.

[4]. Magaret L. Moses, The principle and practice of International Commercial Arbitration (first published 2008. Cambridge University Press) 84.

[5]. Amazu A Asouzu, ‘The National Arbitration Law And International Commercial Arbitration: The Indispensability of The National Court And The Setting Aside Procedure’ (1995) 7 Afr. J. Intl’l & Comp. L. 68, 86.

[6]. A Ahmed Khan, ‘Arbitration/ADR versus Litigation’ (Pakistan WSG Submission, 4 September 2006) <http.//www.hg.org/articles/article_1530.html> accessed 21 December, 2012.

[7]. Carbon (n 3) 217.

[8]. Hub Power Company Ltd v. Pakistan WAPDA (2000) PLD SC 841: Societe Generale de Surveillance S.A. v. Pakistan (2002) PLD SCMR 1694.

[9]. A village council in India and southern Pakistan.

[10]. A Pashto term for a decision making assembly of male elders; most criminal cases are handled by a tribal jirga rather than laws or police.

[11]. Rana Rizwan Hussain, ‘International Arbitration in Pakistan’ (Wordpress, 10 April, 2013) <http://ranarizwanhussain.wordpress.com/2013/04/10/international-arbitration-in-pakistan/> accessed 13 June 2013.

[12]. Ahmed Khan (n 6).

[13]. Ibid.

[14]. Constitution of Pakistan 1973, Article 2.

[15]. Tariq Hassan, ‘International Arbitration in Pakistan, A developing country perspective’ (2002) 19(6) Journal of International Arbitration, 591, 592-593.

[16]. Ibid, 593.

[17]. See, Mustafa Monjur, ‘An Analysis on the practices of Prophet Muhammad (PBUH) in resolving conflicts’ (2011) Journal of the Bangladesh Association of Young Researchers (JBAYR), Volume I. Number 1, January 2011, Page 109-125.

[18]. Grace Xavier, Evolution of Arbitration as a Legal Institutional and the Inherent Powers of the Court. ASLI Working Paper, No. 009, February 2010, < www.law.nus.sg/asli/pub/wps.htm> accessed 2 February 2013.

[19]. Coke was appointed Solicitor-General in June 1592, promoted to Attorney-General in June 1594, and was raised to the Common Pleas bench in June 1606. In October 1613 he was named the Chief Justice of King’s Bench, a position he held until he was removed in November 1616. He was named to the Privy Council in October 1613. He was removed in June 1616, restored in September 1617 and served until December 1621.

[20]. 4 Eng Rep 302 (1609)

[21]. 1 Wilson 129(1746).

[22]. David Gordon, Secession, Stale & Liberty (first published 1998, Transaction Publishers 2009) 257.

[23]. 10 ER 1121 (1856).

[24]. Ashwinie Kumar Bansal, Arbitration and ADR (first published 2005, Universal Law Publishing Co. (Pvt.) Ltd. 2009) 37.

[25]. Samuel Marful-Sau, `Can international commercial arbitration be effective without national Courts? A perspective of Courts involvement in international commercial arbitration’ <http://www.dundee.ac.uk/cepmlp/gateway/files.php?file=cepmlp_car13_4_635429854.pdf> accessed 20th June 2013.

[26]. Arbitration Act, 1979, sec 3 and 4.

[27]. Khan (n 6);

[28]. Guilia Carbone, ‘The Interference Of The Court of The Seat With International Arbitration’ (2012) J. Disp. Resol 217, 222.

[29]. [1999] QB 785.

[30]. “Sir Vivian Ramsey, `The conflict between local Court and international arbitration’ (2012) <http://www.londonarbitrators.org/ sites/default/files/ editor/Sir%20Vivian%20Ramsay%20presentation%2025%20April%202012.doe>accessed 25 June 2013.

[31]. [2010] UK SC 46.

[32]. J. William Rowley and Sudhanshu Swaroop, ‘The Role of the Judiciary in International Arbitration-The benefits of Support: Recent English Experience’ (2009) 10 Bus. L. Int’l 272, 279.

[33]. Family Courts Act, 1964, Sections 10 and 12.

[34]. Industrial Relations Ordinance 2008, Sections 42 and 43.

[35]. Cooperative Society Act, 1925, Sections 50(g), 54, 54A.

[36]. Electricity Act, 1910, Sections 5(b), 7(1), 13, 14(2), 14(3), 15(5), 16(3). 19(2), 21(4), 22, 32(3).

[37]. Income Tax Ordinance 2001, Section 134A, as amended by the Finance Act, 2004.

[38]. Justice Saqib Nisar, International Arbitration in the context of Globalization: A Pakistani Perspective’ <http://www.supremeCourt.gov.pk/ijc/Articles/8/2.pdf> accessed at 14th Feb 2013.

[39]. Eckhardt & Co. GmbH vs. Muhammad Hanif (1993) PLD SC 42, 52.

[40]. A. Meredith Janes Co. Ltd v. Crescent Board Ltd (1999) CLC 437, 441.

[41]. Conticotton S.A. v. Farooq Corporation and others (1999) CLC 1018, 1022-23.

[42]. Federation of Pakistan v. Al Farooq Builders (2001) MLD 99.

[43]. President of Islamic Republic of Pakistan v. Syed Tasneem Hussain Nuqvi (2004) SCMR 590).

[44]. Meredith Jones & Co through Attorney vs Usman Textile Mills (2002) CLD 153.

[45]. Hitachi Limited vs. Rupali Polyester’s and Others, (1998) SCMR 1618.

[46]. [1992] 2 Comp. L.J..256.

[47]. Islamic Republic of Iran Shipping Lines through Attorney v. Hassan Ali & Co Cotton (Pvt.) Limited (2006) CLD 153.

[48]. Flame Maritime Ltd. vs. Hassan Ali Rice Export (2006) CLD Karachi 697.

[49]. PLD 2006 Kar. 664.

[50]. Refer to (N8).

[51]. Ibid.

[52]. Justice Umar Ata Bandial, ‘Limitations on Arbitrability of International Commercial Disputes Under Pakistani Law’ addressing the fiftieth year of establishment of Supreme Court of Pakistan. <http://www.supremeCourt.gov.pk/ijc/Articles/8/1.pdf> accessed at 13 Jan 2013.

[53]. [1993] 1 Lloyd’s Rep. 455.

[54]. [1998] 4 All ER 570.

[55]. Kairas N Kabraji, ‘Hubco v. Wapda: Allegations of Corruption Vitiate International Commercial Arbitration: The Pakistan Experience’ prepared for the 17th LAWASIA Biennial conference at Christchurch, New Zealand, <http://www.lawyers.org.nz/conference/pdf%20fiIes/KabrijiSal7and25.pdf > accessed 15 February 2013.

[56]. Judicial Independence Over view and Country-level Summaries’, Asian Development Bank Judicial Independence Project RETA No. 5987, submitted by The Asia Foundation, October 2003, as cited in Justice Saqib Nisar,’ International Arbitration in the context of Globalization: A Pakistani Perspective’ (n 38).

[57]. PLD 2002 SCMR 1694.

[58]. Makhdoom Ali Khan, ‘National Report for Pakistan’ (2012) in Jan Paulsson (ed). International Handbook on Commercial Arbitration, (Kluwer Law International, 1984 updated June 2012 Supplement No. 69) 1 -- 46.

[59]. Muhammad Iqbal Malik, ‘Political Transitions and Instability in Pakistan’ (Lets start thinking) <http://www.letsstartthinking.org/history/political-transitions-and-instability.asp> accessed 28 June 2013.

[60]. For more details see, Ayesha Siddiqa, ‘Looking back at the Lawyer’s Movement’ The Friday Times, Pakistan Issue March 23-29, 2012 Vol. XXIV No. 6, available at <http://w\vw.thefridaytimes.com/beta2/tft/article.php?issue=20120323&page=3> accessed 22nd March, 2013; also, Usama Khilfi, ‘The Lawyer’s Movement in Pakistan’ (Movements, 29 April, 2011) <http://\vww.movements.org/case-study/entry/the-lawyers-movement-in-pakistan/> accessed 22nd March, 2013.

[61]. ‘Report on International Judicial Conference, 2012,’ International Judicial Conference, Secretariat. Law and Justice Commission of Pakistan (13-15 April, 2012), 16.

[62]. Ibid, 10

[63]. National Judicial Policy 2009, revised edition 2011. National Judicial (Policy Making) Committee and published by the Secretariat, Law & Justice Commission of Pakistan, Supreme Court Building, Islamabad. <http://www.ljcp.gov.pk/Menu%20Items/National%20Judicial%20Policy/Judicial%20
Policy%20June%202011.pdf > accessed 23 March, 2013.

[64]. U.I.G, (Pvt.) Limited v. Muhammad Imran Qureshi (2011) CLC 758 Karachi.

[65]. Ibid.

[66]. Messrs, Alstom Power Generation v. Pakistan Water and Power Development Authority (2007) PLD 581 Lahore.

[67]. Dr. Mrs. Yasmeen Abbas v. Rana Muhammad Hanif (2005) PLD 742 Lahore.

[68]. Muhammad Ramzan v. Afridi Variety Center (2005) PLD 269 Peshawar.

[69]. Mr. Justice Tassaduq Hussain Jillani. `Delayed justice & the Role of A.D.R.” (unpublished paper) as cited in the International Judicial Conference Report (n 61), 310.

[70]. See(n8).

[71]. [1999]Q.B.785

[72]. Ibid.

[73]. 1991 SCMR 1928.

[74]. PLD 1965 SC 425.

[75]. Justice Bandial (n 52).

[76]. Ibid, 5.

[77]. Ibid, 5.

[78]. Justice Saqib Nisar(n 38) 4.

[79]. Ibid.

[80]. Ibid.

[81]. See, (n 57).

[82]. Justice Saqib Nisar, (n 38) 4-5.

[83]. Tariq Hassan, (n 15) 591.

[84]. Hussain Rashid, ‘Resolving commercial disputes through arbitration and ADR in Pakistan’ <http://www.dundee.ae.uk/cepmlp/gateway/files.php?file=cepmlp_car13_1_ 654222172.pdf>accessed 10 March, 2013.

[85]. Arbitration Act, 1940, Section 6.

[86]. Arbitration Act, 1940. Sec. 9.

[87]. Sec. 16 of the Act.

[88]. Section 13 of the Act.

[89]. Section 14 of the Act.

[90]. Section 17 of the Act.

[91]. Section 28 of the Act.

[92]. Section 26 of the Act.

[93]. Rana Rizwan, (n 11).

[94]. Julian D. M. Lew, Loukas A. Mistelis, Stefan M. Kroll, Comparative International Commercial Arbitration (first published 2003, Kluwer Law International, Hague, 2003) 523.

[95]. Rana Rizwan, (n11).

[96]. Mahomed J. Jaffer and Sarmad J. Osmany, ‘National Report - Pakistan’, in Pieter Sanders (ed). Yearbook Commercial Arbitration 1980, Volume V (1980, Kluwer Law International) 114 – 140, 115.

[97]. Ibid.

[98]. Uzair Karamat Bhandari, Feisal Hussain Naqvi, Iftikharuddin Riaz, Ch. 20 ‘Pakistan’, Asia Arbitration Handbook, edited by Michael J. Moser and John Choong (2011, Oxford University Press).

[99]. Rana Rizwan, (n 11).

[100]. The Recognition and Enforcement (Arbitration Agreement and Foreign Arbitration Awards) Ordinance. 2005.

[101]. Rana Rizwan, (n 11).

[102]. Ibid.

[103]. Gordon Jnynes, ‘International Arbitration in Pakistan: A Janusian Perspective’ (2004) 1 Journal of International Arbitration Vol. 21, 83-89, 84-85.

[104]. Okezie Chukwumerije, ‘Judicial Supervision of Commercial Arbitration’ (1999) 2 Arbitration International Vol.15, 171-192, 183.

[105]. Samuel Marful-Sau, (n 25).

[106]. Prof. Julian D M Lew QC, ‘Does National Court Involvement undermine the International Arbitration process’, 24Am-U-Int’IL, Rev. 489, 537.