Court interventions in international commercial arbitration: a case study of Kompetez: Kompetez and public policy in Pakistan

Abstract

In today’s dynamic and ever changing world of global business, arbitration has emerged as a preferred mechanism for resolving commercial disputes, wherein the role of national courts remains both essential and contentious. This thesis probes into the dynamics of court interventions in commercial arbitration in Pakistan, juxtaposing it with the universally recognized doctrine of Kompetenz-Kompetenz and the implications of public policy. The objectives of this research are to discern the delicate balance between arbitral autonomy and judicial oversight, primarily within the Pakistani context. To achieve this, the study aimed to answer the following pivotal questions: How have Pakistani courts approached the principle of Kompetenz-Kompetenz? What is the scope and application of public policy in arbitration matters in Pakistan? How do court interventions impact the enforcement of domestic and foreign arbitral awards in the country? By methodically examining case law and legislative provisions, including the 1940 Act for domestic awards and the 2011 Act for foreign awards, this study identifies varying interpretations and sometimes inconsistent judicial stances. Findings underscore that while courts in Pakistan have, in instances, upheld the sanctity of arbitral awards, there have been notable digressions, driven by jurisdictional ambiguities and public policy considerations. This inconsistency potentially affects Pakistan's standing as an appealing destination for international commercial arbitration. Notably, the Supreme Court's suggestion to incorporate the UNCITRAL model law into domestic legislation highlights a potential path forward. The thesis postulates that for commercial arbitration to gain traction and trust in Pakistan, it is imperative for the judiciary to maintain a delicate balance. While judicial oversight is necessary to safeguard fairness and the rule of law, excessive intervention risks undermining the core tenets of arbitration. The research concludes with a call for Pakistan to align its arbitration laws with global standards, fostering a harmonized approach that recognizes both the sanctity of arbitration and the pivotal role of courts.