Speakers at a conference on Monday emphasised the need for amending Pakistan’s arbitration laws in order to bring them on a par with international laws, and spreading awareness about them so that more people opted for arbitration and mediation instead of approaching courts to have their issues resolved.
The seminar titled ‘Amendment in the Arbitration Act 1940: Are Changes Long Overdue?’ was organised by SAARC Arbitration Council (SARCO)- a specialised body of the South Asian Association for Regional Cooperation (Saarc), in collaboration with the Musaliha International Center for Arbitration and Dispute Resolution (MICADR) at a local hotel.
In his keynote address, Singh High Court Senior Puisne Judge Irfan Saadat Khan lamented that Pakistan was lacking as far as arbitration and mediation was concerned as the public were mostly unaware of that process and believed in approaching courts for the resolution of their disputes rather than having them resolved by way of arbitration and dispute resolution (ADR) or mediation.
“Thus in my view, it is the need of time that a common man or the persons doing legal practice ought to be given awareness to educate a common man to get their disputes resolved by way of ADR or mediation rather than approaching the court,” he stressed.
“I myself am a great proponent of the ADR system, which is in my view not only time efficient but also cost efficient but the need of time is to build confidence among common man to go for ADR in mediation rather approaching court for settlement of their disputes.”
The judge said that Jirga, Biradari and Panchayat were excellent examples of ADR and mediation but unfortunately we did not have proper legislation as far as these systems were concerned. “In my view, legal consultants while drafting contracts and agreements, whether local or international, must necessarily provide clear arbitration clauses in their agreements which should be free from any uncertainty and ambiguity and courts should strive to refer the matter for arbitration in case of disputes,” Justice Khan said.
He added that arbitration and mediation were always considered to be alternatives of judicial proceedings in advanced countries like the United Kingdom, United States, Canada and other countries.
The judge explained that arbitration was applied not only to conventional disputes but also to non-conventional ones such as those pertaining to medical and environmental laws.
Since it was considered to be the best cost-effective way to settle disputes between parties, China and other countries were exploring the possibility of resolving diverse and complicated issues through the ADR, the judge said.
He pointed out that impartiality and independence were two fundamental requirements of an arbitrator.
He called for supporting arbitration by judicial support and legislative and regulatory initiatives. Efficient case management with inexpensive and timely award could play a vital role in advancement of ADR and state-owned enterprises could also play an effective role in this regard, he added.
He stated that making amendments to the law to bring international best practices to the ADR was also the need of the hour. For meaningful arbitration, there had to be a proactive arbitration culture, which could only be done by providing effective awareness to the people, he said, adding that reforms could be introduced in three ways — legislative, judicial and institutional.
Justice (retd) Arif Hussain Khilji, former Judge of the Supreme Court of Pakistan and MICADR managing director, highlighted the notable collaborations forged by the MICADR with Pakistan’s leading private and publicly-listed companies.
It has been observed in Pakistan that people approached courts to have their issues resolved, he said, adding that in the advanced countries, an arbitration system had evolved as people tried to find a solution to their dispute out of court.
He stressed the need for amending the arbitration laws in order to bring them on a par with international laws so that people could get their issues resolved easily.
In his welcome address, SARCO Director General Helal Chowdhury provided an overview of the Arbitration Act 1940, which had been the bedrock of dispute resolution in Pakistan for over eight decades, serving as a pillar of stability and support for resolving commercial disputes. He also shed light on role of Saarc and its specialised bodies.
The event featured two engaging technical sessions, each comprising a panel discussion followed by a question and answer session.
Published at The News on 25th July 2023