Arbitration Insights and Legal Challenges by H. Bilal

Pakistan’ legal system has been derived from English Common law, which was the constitutional embodiment of British India[1]. The law regulated the social, economic and welfare systems of both Hindus and Muslims till independence. Since 1947, Pakistan’s legal system has been working on similar constituents with amendments and clauses. The 1973 constitution of Pakistan is the legal framework of Pakistan’s legal system and it has 280 articles, 25 amendments and has introduced relevant clauses for judicature, elections, emergency provisions, federation and provinces and other fundamental rights[2]. It has six schedules and till now, it has impacted the judicial system in a concocting manner. According to Majid, the constitution of Pakistan is a mere piece of documentation and there needs to be a feeble state of affairs amidst its presence[3]. Till year (2023), there have been four martial laws that have destroyed civil military relations, there is a hybrid regime that controls political stability of the country and there are non-traditional and traditional threats to national security[4]. All due to non-implementation of constitutional rights among the public. The concept of separation of powers, which argues the indispensable separation of state departments is at an abysmal state in Pakistan leading to a failed mode of governance in Pakistan. Hence, the legal system of Pakistan is derived from English common law and in the present, it is in a worst state of affairs and Alternative Dispute Resolution is a way forward to deliver fair, quick and easily accessible justice to aggrieved parties in Pakistan.

Brief overview of the legal systems of Pakistan and the United Kingdom (UK)

In this chapter, a brief overview of legal systems in Pakistan and UK will be discussed. In order to clear a discussion on Alternative Dispute Resolution (ADR), flaws in Pakistan’s system have to be established keeping in mind the legal system of UK. The United Kingdom (UK) has three separate sets of general laws: one for Great Britain and Wales, Scotland, and Northern Ireland. This reflects their authentic origins[5]. The answers below deal with the general set of laws for Great Britain and Wales, however they reference other parts of the UK where appropriate.

The UK has an unwritten constitution in which there is no single elaborate file setting out the liberties of individual residents and how public authority should act. The constitution is unitary in the sense that the Parliament of Westminster is the main normative authority[6]. Starting around 1999, the devolution has accommodated the exchange of skills from Westminster Parliament to meetings in Cardiff (Wales) and Belfast (Northern Ireland), and the Scottish Parliament in Edinburgh. However, other normative bodies, such as declining congregations or local specialists, determine their normative authority from the powers granted to them by Parliament in Westminster.

When it comes to Pakistan’s legal system then Pakistan is an Islamic republic. Islam is the state religion, and the Constitution expects regulations to be predictable with Islam. The nation has an area of 310,527 square miles and a population of 220 million. Official figures on strict demography, in light of the latest statistics taken in 1998, showed that approximately 97% of the population was Muslim[7]. The majority of Muslims in the nation are Sunni, with a Shiite minority ranging from 10 to 20 percent. The Correctional Code integrates various Islamic regulatory arrangements (Shari’a). The legal framework involves a number of different judicial frameworks with scopes of coverage and sometimes contradictory reflecting contrasts in common, criminal and Islamic statute. The Government Shari’a Court and the Shari’a seat of the High Court serve as redrafted courts for specific convictions in criminal courts under the Hudood Statutes; the judges and lawyers of these courts must be Muslims. The governmental Shari’a court could overturn any regulation that was decided to be in conflict with the fundamentals of Islam. In Walk 2005, however, the High Court of Justice decided that the Government Shari’a Court had no jurisdiction to review a decision of a common high court, regardless of whether the Shari’a Bureaucratic Court should have started reassessing pavilion.

Issues within Pakistan’s Legal system

Within the context of Pakistan’s legal system, a series of pressing challenges and obstacles have emerged, fundamentally impacting the effectiveness and credibility of the legal framework. As highlighted in the thesis, this chapter will delve deeper into these critical issues, providing a comprehensive examination of their implications and ramifications. Corruption, political interference, and the denial of basic freedoms have collectively cast shadows over the rule of law in Pakistan. This chapter will dissect each of these challenges, analyzing their origins, consequences, and potential remedies. By scrutinizing these issues, we gain a clearer understanding of the multifaceted barriers that the legal system faces and lay the groundwork for exploring alternative dispute resolution (ADR) as a viable solution to address these systemic concerns.

Despite some progress of late, law and order in Pakistan remains a critical test. Several variables continue to undermine the adequacy of the country’s overall set of laws and organizations, including:

Corruption:

Corruption is widespread in Pakistan and significantly affects law and order. The executive branch, the police, and other establishments responsible for maintaining law and order are often subject to payoffs and other types of corruption[8]. This undermines residents’ confidence in the equity framework and makes it difficult for the public authority to successfully authorize regulations and safeguard residents’ privileges.

Political Obstruction:

Political impedance in the general set of laws is a major problem in Pakistan. Legislators and other influential people often use their influence to influence the outcome of legal cases or to protect themselves and their partners from prosecution[9]. This subverts the autonomy of the legal executive and sabotages law and order.

Denial of Basic Freedoms:

The denial of basic freedoms, including extrajudicial killings, torture and enforced disappearances, are serious problems in Pakistan[10]. The public authority has refused to really examine and charge those responsible for this ill-treatment, allowing a culture of exemption to take root. This sabotages law and order and makes it harder for residents to seek equity.

The World Equity Venture measured law and order execution in 128 nations depends on eight elements, which incorporate; Imperatives on Government Powers, Nonappearance of Defilement, Open Government, Crucial Freedoms, Request and Security, Administrative Implementation, Common Equity, and Criminal Justice[11].

Pakistan’s general positioning in law and order file for the year 2020 has dropped by one position when compared with the earlier years[12]. In 2020 Pakistan got 0.39 scores and was in 120th position. In the South Asia locale, Pakistan was just ahead of Afghanistan. The Legal framework can be investigated on the premise; that whether it is open, reasonable, really liberated from segregation, liberated from debasement, liberated from ill-advised government impact, liberated from outlandish deferrals, convenient settled, and in common equity whether ADR (Elective Question Goal) components are available, fair-minded and viable, and in law enforcement whether criminal examination and remedial equity framework is powerful and whether it decreased criminal conduct in the public eye and whether fair treatment of regulation is being followed and right of charged has been safeguarded.

Pakistan stayed in the 118th position in the variable positioning of common equity for 2020. In 2019 the nation was on a similar position[13]. While in the variable positioning of law enforcement for the year 2020 Pakistan has fallen six-positions down to 98th spot, the nation was positioned as 92^nd in 2019. The vast majority in Pakistan are reluctant to bring their legitimate issues under the steady gaze of the courts; this is because of the quantity of imperfections in the current legal framework. Following are a portion of the social, lawful, monetary and political impediments to getting equity. Precise Defilement has for some time been the most concerning issue in Pakistan like harmful disease[14].

The state of Pakistan and the need of alternate dispute resolution

In assessing the current state of Pakistan’s legal landscape, it becomes evident that the challenges outlined in the thesis have contributed to a system strained by complexities and inefficiencies. This chapter will delve further into the urgent need for alternative dispute resolution (ADR) as a strategic intervention to address these challenges. Building upon the foundations established in the thesis, we will explore the rationale behind embracing ADR as a solution and its potential to reshape the dynamics of justice delivery in Pakistan. The analysis will highlight the symbiotic relationship between Pakistan’s legal context and the adoption of ADR principles, underscoring the potential for enhanced efficiency, accessibility, and equity within the legal system. As one navigates through this chapter, the interconnectedness of Pakistan’s current state and the need for ADR will come into sharper focus, illuminating a pathway toward a more robust and effective legal framework. With a mission to further develop the equity framework in Pakistan, the appropriate common cases are being redirected towards semi-formal alternate dispute resolutions (ADR) focusing on both interest and supply end. On the interest end, practical, native, and technology-powered systems are created to make networks in Venture Locale independent to reach ADR components[15].

At the end of stocks, the supply of ADR experts from the legitimate cabal is guaranteed through full support for changes, and today’s existing ADR specialists are improved by creating limits. The Program includes semi-formal ADR and excludes haphazard systems of questionable purpose such as jirgas and panchayats (Traditional tribal way of justice). Within the objective of the surrogate question, there are three standards of work, i.e. exploration and endorsement, legitimate mindfulness, and limited work by different artists within the framework of equity[16].

A critical part towards ADR mainstreaming is to build an equity framework boundary with the aim of providing ADR specialists as well as creating local area frameworks through which networks use ADR to organize common discussions. At the end of the Inventory, boundary building studies are carried out with Legal Foundations and Commonplace and Government Ombudsman’s to further work and develop the settlement of ADR actions across Pakistan. On the interest end, the ADR paralegals at Task Locale are trained and prepared in ADR systems, engagement skills, ADR specialists, and the resources to reach such specialists to determine disputes[17]. These networking paralegals help create a sustainable framework through which mindfulness and data opens up regarding elective discussion target types. Building boundaries and strengthening key people on both the interest and supply ends creates a framework through which ADR is spawned and made more standard.

Alternate Dispute Resolution is being used to represent various means of resolving disputes beyond prosecuting in courts and is widely trialed around the world and progressively used in South Asia to elevate timely admission to fairness[18]. In Pakistan, many disputes are still resolved through common resolution strategies, such as jirgas or old people’s chambers. In any case, these conventional strategies can be trapped by power elites against the defenseless, and need quality control systems, for example, moral principles to ensure lack of bias and promote the guiding principle of intervention, including a set of rules. While there is authoritative and leading support for advancing the use of ADR related to these other strategies to lessen the glut and burden on the courts, it has only recently taken hold (9).

In spring, Lahore High Court Head of Equity, Syed Mansoor Ali Shah, opened the first court-confirmed ADR focus in the Lahore city of Punjab. The place of intervention has 36 exceptionally prepared judges who act as intermediaries[19]. ADR follows a classified and adaptive cycle in which the middle person comes to meetings with an understanding of the interests of all stakeholders and their legitimate and viable options. So far, the center has received a total of 209 cases, of which 141 were effectively resolved, 27 failed, 18 were dropped due to non-attendance at meetings, and two were returned to the courts. Judge Tajjamul Chaudhary, who runs the outlet and also acts as an intermediary, said that “few cases in this platform have been resolved almost at the same time, while the cases have been filed in the courts for a long time[20].”

Following the outcome of this model, similar intercessory communities have now been established in each of the 36 districts in the Punjab territory.

Amidst such hue and cry in Pakistan, there is a strong need to implement Alternate Dispute resolution in Pakistan’s legal system.

Basic Tenets of Alternate Dispute resolution

In the realm of legal innovation, the fundamental principles of alternate dispute resolution (ADR) stand as guiding beacons, offering a transformative approach to resolving conflicts. This chapter takes a closer look at these core tenets, building upon the foundation set forth in the thesis. By delving into the essence of ADR principles, we aim to unravel the bedrock upon which effective dispute resolution strategies are built. As one traverses through this chapter, we will explore the principles that underpin ADR’s success, from fostering collaborative engagement to prioritizing efficiency and preserving relationships. Through this exploration, a deeper understanding of the potential impact of ADR on the legal systems of both Pakistan and the United Kingdom will emerge, paving the way for more nuanced insights into the benefits of embracing alternative approaches to conflict resolution. Following are important tenets of Alternate Dispute Resolution in Pakistan

Willful

ADR is a voluntary choice for meetings[21]. This implies that the assemblies must consent to present their debate to the ADR Program. However, a deferred ALJ can expect meetings to work on studies, settlement meetings, or meet with a nonpartisan to investigate the possibility of an ADR (10).

Timeliness

ADR should shorten, not extend, procedures. In any case, regardless of whether a deal takes longer, the result may be more valuable to everyone.

Free of charge

The Commission’s ADR Program is proposed to meetings free of charge.

Pure intentions

People who engage in ADR should act as such by trying to agree, not to postpone or gain strategic benefit in the court proceedings[22].

Classification

Most ADR processes require classification so that the main benefits of meetings can be authentically investigated[23].

Commission approval

The Commission will quickly approve agreements that are legitimately appropriate. Not all agreements reached through ADR interaction will require the endorsement of the Commission.

Principles of Alternate Dispute Resolution

Principles of ADR have to be manifested before making it viable for any legal system[24]. The National alternative dispute resolution advisory council (NADRAC) describes ADR to be a fundamental responsibility of people.

In 2011, NADRAC discovered a bunch of public ADR standards as noted[25]:

People have an obligation to find true ways to determine or explain the debates, and they must fulfill that obligation.
Debates should be resolved in the least difficult and most practical way. Moves to resolve disputes, including the use of ADR processes, in any appropriate venue, should be made as soon as possible and under the watchful eye of and during all court or council proceedings.
People who attend a discussion goal cycle should show their commitment to that interaction by paying attention to different perspectives and moving forward and considering goal options.
The people in the discussion should reach out and seek information that allows them to choose reasonable questioning objective processes and enlightens them on what awaits them in various cycles and specialized cooperatives.
The people in question must have the intention of agreeing through the ADR process. They should not be required or forced to do so, assuming they accept that it would be inappropriate or treacherous. If you cannot determine the issue, people should go to courts and councils.
Successful, reasonable, and competent ADR administrations that meet the OK guidelines should be quickly available to people for questions.
Terms describing the question objective cycles should be used without fail to enhance understanding of and confidence in the local area.
It is possible that these standards could be refined in other ways, but they seem to capture several helpful hints that are worked out.

Alternative Dispute Resolution (ADR) and its Impact on Rule of Law (ROL)

In the intricate realm of legal systems, the integration of alternative dispute resolution (ADR) has woven a compelling narrative of transformation and advancement. This chapter embarks on an exploration aimed at dissecting the profound impact that ADR exerts on the rule of law (ROL), building upon the established framework outlined in the thesis. As this journey unfolds, intricate interplays between ADR and the foundational tenets of the rule of law will be unveiled. Real-world examples and case studies will be scrutinized to illuminate how ADR acts as a catalyst for upholding justice, amplifying access to legal remedies, and cultivating a culture of equity and impartiality. Throughout the chapter, the intersections where ADR and the rule of law converge will be traversed, ultimately revealing the potential for cultivating a more robust and inclusive legal landscape in both Pakistan and the United Kingdom.

The expression “rule of law” has been a topic of wide conversation among legal researchers and scientists over time. Regardless of the talk, it appears that a generally accepted definition cannot yet emerge[26]. The idea of law and order is innately challenged, earning wide respect. While there are different translations, most researchers agree that in any case, law and order implies a common obligation with respect to both individuals and government actors to uphold the law.

According to a formalist view, law and order is described by predetermined, general, clear, and predictable legitimate rules that apply uniformly to all people. This perspective emphasizes the independence and pride of the people, essentially without requiring considerable arrangements that shield explicit liberties. Basically, the formalist definition aligns with the standards of procedural fairness and lack of bias. It underscores the importance of seeking fair and consistent options in applying the law while thinking about important realities[27]. This definition also accrues the benefits of treating citizens with kindness and consideration during court proceedings. The Struggle Frames plan, a key idea, emphasizes the need for different question targeting techniques to take special care of the interests of different partners. Engineers associated with public order and administrative projects must acquire a broad understanding of formal and informal question targeting systems, including the objective of elective debate (ADR), and carry them out appropriately within the local environment to promote public order. This approach has prompted the founding of public frameworks for momentary fairness, incorporating local and global courts, customary fairness options, truth and compromise commissions, among others.

In the law and order (LAD) domain, there is a propensity to view all friendly matters through a legitimate focal point, as exemplified by the maxim “he who drives the sled thinks everything is a nail”. In any case, not all the questions and their answers are established in an innate way in the legitimate space. In fact, even the most intricate EDD projects often depend on “extra-legitimate” components for their prosperity[28]. The EDD group of people must broaden their point of view beyond the unambiguous legitimate difficulties and consider the human parts of EDD problems.

Regardless of concerns about ADR processes and their compliance with ROL standards, advocates stress ADR’s ability to meet the procedural fairness need of oppressed parties. Incorporating modes such as intervention, intercession, pacification, and discussion, ADR is frequently viewed by litigants as procedurally fair and attractive in contrast to formal courts. Members’ view of procedural reasonableness assumes a critical part in the authenticity of ADR processes, building their agreement with ROL objectives.

The main rule of law (ROL) precept stressing the maintenance of regular fairness aligns consistently with the Alternative Dispute Resolution (ADR) standards, especially in advancing procedural decency. The legitimate operation of the general set of laws depends on impartial navigation, direct and impartial hearing cycles, and other elements that maintain normal fairness standards. The ADR methodology is considered genuine because it upholds values, for example, “assent, cooperation, empowerment, balance, consideration, sympathy, value, access, and fairness.” ADR takes into account recognizable evidence of individual’s genuine needs and interests, driving goals that meet these requirements rather than mere positions or needs. Thinking within ADR is considered to enhance the authenticity of majority rule through broad open support, informed assent, and public explanation activity, promoting a feeling of fairness and decency.

The idea of Alternative Dispute Resolution (ADR) has been around for over a hundred years and is accepted to be available throughout the world[29]. Its appeal lies in its versatile methodology, which allows question groups to determine their disparities in a great way and safeguard their ongoing relationship[30]. When adopted with government support and certifiable local area and cultural cooperation, ADR offers several advantages and benefits. By consolidating ADR as an equitable system, the legal executive can grant open and reasonable equity to people whose rights have been violated. ADR incorporates different strategies such as Arbitration, settlement conferences, neutral evaluation, and mediation. The assemblies can use these ways to reach friendly solutions without including the courts. This grants the party in distress access to quick and prompt equity through these channels, fundamentally affecting law and order.

Classification of Alternate Dispute Resolution

The way one realizes the expression “alternate dispute resolution” presents significant thoughts. The moment we restrict the importance of “elective”, it raises two central questions. To begin with, it establishes an examination between the resolution of problems out of court (ADR) and the use of the judicial framework[31]. This helps us to consider them as various methodologies. Second, take a look at how ADR works on the inside. This includes deciding whether or not a nonpartisan outsider is required and regardless of whether the interaction is related to the decision.

At present, a broader understanding of word “alternate.” Is idea of choosing the correct method to solve a problem. From various circumstances, one can choose various techniques, such as going to court, or trying alternative ways such as exchange, intervention, or discretion[32]. The main thing here is to track the correct methodology that fits the particular question. In this sense, all strategies, including going to court, are essential for a greater procedure to address confrontations.

Therefore, more or less, contemplating the alternate dispute resolution helps us to see various approaches to handle the problems. One can compare the use of the court with the use of different techniques, understand how those strategies work and choose the best one for each circumstance. This implies that, in any case, going to court is seen as a method of resolving issues, along with discussion, intercession and mediation.

The translation of the expression “dispute” requires an examination of the beginning, nature, importance and change of the issues[33]. Rules are created for two main issues: the separation between legitimate and illegal debates, and the change of course of the issue.

The classification of ADR processes depends on two interconnected factors. The main element includes the choice of the essential rules that mark the structure of the order. (12). The subsequent component is related to the applied thinking strategy, with two options: an inductive or rational methodology. The selected technique directly shapes how the grouping develops. There are several ways to move towards ADR. A perceived focus is on the application of ADR processes in different areas of discussion in view of the environment. This involves organizing ADR processes according to particular areas of debate. This methodology, in any case, has impediments. The test will generally be counted or exact, removing general standards from explicit encounters. This approach does not provide a comprehensive premise for clustering, as it falls short of a larger hypothetical design[34].

One more way to deal with ADR is in the process how it works, because ADR structures a different cycle framework close, but not selective, to the objective framework of legal debate. ADR processes are examined in a similar way to the legal cycle, emphasizing the process and evaluating ADR within the system of general rules of procedure. This rational methodology directly influences how characterization is coordinated, moving from general procedural standards to explicit standards for individual cycles. Both methodologies have their assets that depend on their objectives.

However, for this paper the situated interaction approach is assumed, which is insightful. This is determined to show ADR as a framework for interaction. A situated order of interaction of ADR processes presents its own difficulties. A key thought includes deciding the control strategy to order the issue. Two strategies of perceived order emerge from the existing exploration: one in view of individual qualities and the other through examination. The benefits of each strategy are evaluated before an elective methodology is recommended. Bundling in view of the attributes of ADR processes is important and should not be entirely excused. In fact, each request for ADR processes is based on investigating its qualities. In either case, a trademark-based grouping is often deficient due to the fact that the qualities used for characterization are not fully coordinated in the larger hypothetical system.

The examination is one more technique to order the ADR processes. Two types of correlation can be used. The first includes looking at similarities and contrasts between the components of the cycles. The subsequent strategy qualifies the cycles in light of their feasibility according to explicit components. The test assumes a crucial part in any grouping, offering experiences in the distinctive elements of different cycles through the evaluation of their similarities and contrasts[35].

Concept of Legal Negotiation in the context of ADR

Negotiation, a dynamic and flexible strategy for private request, assumes a crucial role in working with arrangements and conflict resolution in a different realm of social connections[36]. This diverse cycle includes successful matching and connecting, where parties engage in essential deals to reach a shared agreement or explore complex mindsets to track the goal.

Generally connected to the domain of legal experts, exchange thinking has evolved to incorporate a particular structure known as “legitimate discussion.” This distinctive methodology works within its own set of principles, values and underlying system within the legitimate climate. Interestingly, the development of this specific type of discussion aligns with the simultaneous rise and advancement of the alternate dispute resolution (ADR). The ADR system has provided fertile ground for the mixing and cross-fertilization of different qualities and perspectives related to the hypothesis and practice of exchange. Consequently, the idea of legitimate negotiation has taken on an unmistakable quality, benefiting from bits of knowledge gleaned from interdisciplinary examinations involving the social humanities, critical research, and the social sciences.

Alternate dispute resolution in United Kingdom

Within the legal framework of the United Kingdom (UK), the application of alternative dispute resolution (ADR) has unfolded as a significant avenue for conflict resolution and legal evolution. This chapter embarks on an investigative journey to illuminate the intricacies of ADR within the UK, building upon the established foundation presented in the thesis. As this exploration unfolds, we will navigate through the diverse landscape of ADR methods and their integration within the UK’s legal context. Real-world instances and case studies will be examined to showcase how ADR has been effectively employed, underscoring its adaptability and effectiveness in addressing legal disputes. Throughout this chapter, the symbiotic relationship between ADR practices and the UK’s legal framework will be unraveled, offering insights into the potential benefits of ADR adoption within the broader context of global legal practices.

Two sets of regulations, in March and June 2015, were put in place in Parliament to carry out the European Mandate on Alternatre Dispute Resolution (ADR) in the UK[37].

The objective of elective discussion for buyer questions (qualified specialists and data) Guidelines 2015
The Elective Discussion Target for Buyer Questions (Revision) Guidelines 2015

The Secretary of State is the traditional competent authority and has delegated the Chartered Trading Standards Institute (CTSI) to perform these functions for their sake[38]. The guidelines do not make cooperation in ADR plans mandatory for merchants. The rules actually require virtually every company that sells direct to buyers to direct the customer to a guaranteed ADR chart, where they can’t determine a question internally, and rule on whether they intend to use that plan.

The guidelines also expect that ADR providers wishing to acquire accreditation must adhere to specific guidelines regarding freedom, non-biased nature, and nature of skill.

Benefits of Alternate dispute resolution in Pakistan

In the realm of Pakistan’s legal landscape, the adoption of alternative dispute resolution (ADR) emerges as a transformative approach with far-reaching benefits. This chapter embarks on an exploration aimed at unraveling the myriad advantages that ADR brings to the forefront, building upon the foundation set forth in the thesis. As we delve into this investigation, we will uncover the multifaceted ways in which ADR contributes to the enhancement of the legal system in Pakistan. Throughout the chapter, the symbiotic relationship between ADR and the broader legal framework in Pakistan will be unveiled, offering insights into the potential transformation of the legal landscape through the integration of ADR practices.

In Pakistan, the ADR bill was passed in 2017, and various ADR approaches were established across the country around the same time[39]. The objective of this regulation was to guarantee the provision of a fast, less formal and intelligent method to reach equity.

Looking back on Pakistan’s set of experiences, ADR goes back similar to Pakistan itself. It addresses a contemporary variant of the “Punchayat” and “Jigra” frameworks used to resolve tribal disputes. In Pakistan, two types of ADR have been tried over the past hundred years: customary ADR and public body ADR. Customary ADR, encompassing the “Punchayat” framework in province of Punjab and the “Jirga” framework in provinces of Khyber Pakhtoonkhwa and Balochistan, was adept at dealing with petty offences. Therefore, public bodies committed to resolving such issues using traditional ADR strategies. Following this, appeasement courts were established under the 1961 Court of Settlement Mandate, hoping that conventional capacities would satisfy by ADR. Separate discretionary meetings were arranged to address family matters, while discussions related to the work environment were taken care of by the Association’s boards, working under the Muslim Family Regulation Mandate of 1961[40].

Quick Justice

The sluggish speed of justice represents a critical test for Pakistan’s justice framework. Prevailing and subordinate courts are concerned about a huge overabundance of cases. Many cases persist for decades, intensifying the convergence of new cases. A few cases remain unresolved for a long time without final decisions. Occurrences like the Mr. Waheed case, the (latest) Raja Arif case and the Benazir Murder case embody this[41]. Little by little, more than 1.87 million cases will reach Pakistani courts. According to the Pakistan Law and Equity Commission, the High Court has 38,359 pending cases, while the five High Courts in total have 293,947 pending cases[42].

In the late 19th century, William Ewart Gladstone, the UK’s leader of state, said: “Equity deferred is equity denied.” Solicitude and equity are basic intertwined ideas for cultural harmony and government assistance. To decrease case overruns and facilitate fairness, there could be no better option than to adopt ADR, which is exceptional in determining the most common cases through discretion, appeasement, and intervention.

Cases involving murder and property division or trading comprise a large number of cases in Pakistan. While not all criminal cases are reasonable for ADR, however common property-related cases can be successfully handled through ADR. ADR is especially adept at dealing with these cases. Parties are more involved all the time and are not frustrated by procedural conventions and the common legal language of the ADR bodies. Subsequently, they are required to reach a common goal in an expeditious manner, aided by decreased time and lower costs compared to the costs of trials.

Since the enactment of the ADR Law, arbitrators have effectively resolved more than 10,000 cases. In fact, even Central Equity of Pakistan advocates for ADR, saying: “Assuming the board fails in its duty, we must go ahead and introduce new techniques[43].”

Cost considerations

Prosecution in court involves significant expenses. Despite efforts to change the CPC and CrPC, these efforts have been largely ineffective. The significant expenses deter many people from seeking a course of action in court to file complaints. These expenses include legitimate representation fees, court fees, and travel costs. Legitimate expenses per hearing can add up to Rs 30,000 and then some others[44]. In either case, pursuing equity on minor civil issues incurs tremendous costs, that many people especially those with monetary problems, cannot handle. In a country with a significant population below the poverty line, this represents a critical problem.

On the contrary, ADR offers a successful settlement. With ADR approaches established in urban communities where courts, particularly superior courts, are distant, travel costs are limited. Negligible or non-legal representation is expected, since the interaction is independent. This further reduces the costs of legal representation. Since ADR itself does not involve additional costs, reaching this question goal technique does not add to the overall goal costs.

Difficulties of legitimate representation

ADR does not mandate legitimate representation. This eliminates the possibility of clever legal advisers prolonging hearings for individual augmentation, facilitating the purpose of the debate. Included parties are required to cooperate directly, with less antagonism, leaving no trace of an adjudicator or legal counsel, and are more open to ideas from intermediaries.

Different countries including the US, India, Bangladesh and Russia have adopted this system for a long time. India, Pakistan’s neighbor and social and constitutional reciprocal, has used ADR long before Pakistan and has noticed increased engagement in ADR, resulting in decreased time and money spent on prosecution. With Pakistan’s new ADR mix in its equity framework, comparative results can be expected, especially with regard to speed of prosecution, costs, and the enthusiasm of Pakistanis to adopt this process[45].

Before arguing how ADR practices can be incorporated in Pakistan, a comprehensive literature has to be discussed regarding present ADR practices in Pakistan.

Alternate dispute resolution in Pakistan

This chapter delves into the application of alternative dispute resolution (ADR) within Pakistan, expanding upon the groundwork laid out in the thesis. Through this exploration, we will navigate the utilization and potential impact of ADR in addressing legal conflicts and fostering an efficient and equitable justice system.

It is significant that Pakistan’s 1973 constitution does not clearly specify ADR, but does imply financial and commercial remedies, which recommends an inferred statement from specific ADR strategies[46]. Unlike its prominence in current general law sets, ADR does not have large areas of strength for support gained in Pakistan, causing a continuous increase in case numbers, especially in lower courts, due to a permissive methodology towards ADR by parliament[47].

Following are the areas of Laws where ADR is currently incorporated irrespective of its outcomes:

ADR under the Income Tax Ordinance, 2001
ADR under the Federal Excise Act
ADR in Family matters.
ADR under Labor Laws

Way forward for Alternate Dispute Resolution in Pakistan

This chapter embarks on a comprehensive examination of the utilization and implications of alternative dispute resolution (ADR) within the context of Pakistan’s legal system. Building upon the foundational understanding established in the thesis, we will delve into the practical application of ADR methodologies in diverse legal scenarios, unraveling their potential to expedite conflict resolution, reduce burdens on formal judicial processes, and promote a culture of collaborative settlement. By scrutinizing real-world instances and case studies, we aim to shed light on how ADR mechanisms can reshape the landscape of legal disputes in Pakistan, thereby offering a promising avenue for enhanced access to justice and the fortification of the rule of law.

A Punjab ADR report covering the period from June 2017 to April 30, 2021 gives information on the cases dealt with by the ADR approaches, numbering 24,906 cases[48]. The diffusion is as follows:

Family cases – 23%
Common cases – 21%
Criminal cases – 16%
Service Organizations – 33%

With enthusiasm, the European Association and the UN organizations have sent each other a program that aims to support law and order and improve the law enforcement framework (CJS) in Pakistan. This push, which runs from 2021 to 2025, places explicit emphasis on the territories of Khyber-Pakhtunkhwa (KP) and Balochistan. The association will offer specialised help for legitimate changes and public order guidance in KP and Balochistan. A key focus of attention will be fair admission through a free legal guide and elective debate objective, as well as enhancing legitimate competition among residents.

Factors upgrading the adequacy of Alternative Dispute Resolution (ADR) in Pakistan:

Foster Extensive Mindfulness Projects:

Prompt and far-reaching mindfulness projects ought to be planned and executed by the legal framework, Government Services, Bar Affiliations, Bar Chambers, graduate schools, and regulation social orders. These projects ought to plan to teach many partners, including defendants, legal counselors, regulation understudies, and different parts of the law enforcement framework. The projects ought to cover the lawful parts of ADR as well as accentuate its advantages, systems, and possible results. Studios, workshops, public discussions, and online classes could be coordinated to cultivate a profound comprehension of ADR’s benefits, empowering its more extensive reception[49].

Proficient Preparation for Neutrals:

To upgrade the adequacy of ADR procedures, it is urgent to sort out guaranteed instructional classes for the two, legal counselors and neutrals, like middle people, judges, and mediators. These instructional meetings ought to zero in on building progressed abilities in intercession, discussion, and assertion procedures. Lawful experts and neutrals ought to be outfitted with the devices expected to direct gatherings towards useful exchange, work with settlements, and keep an unbiased position. These abilities will empower ADR experts to oversee clashes all the more actually and increment the achievement pace of ADR processes[50].

Media Commitment and Public Effort:

To increment public mindfulness and comprehension of ADR, the print and electronic media ought to assume a proactive part. Notwithstanding lawful revealing, news sources can have syndicated programs, board conversations, and meetings with ADR specialists, displaying effective ADR case results. Narratives and element stories could reveal insight into genuine ADR encounters, featuring its benefits, openness, and commitment to alleviating court blockage. Compelling media commitment will assist with dissipating misguided judgments, urge more gatherings to think about ADR, and add to its more extensive acknowledgment.

Various Board of Neutrals:

The determination of neutrals, including judges, evaluators, and middle people, ought to be founded on a different and complete measures. This can be accomplished by including numerous partners, including High Courts, proficient bodies, scholastic establishments, Ulema (religious scholars), resigned judges, technocrats, and specialists. Laying out a wide and delegate board of neutrals will guarantee the accessibility of experts with fluctuated skill, social responsiveness, and comprehension of various debate settings, prompting more compelling and fair ADR procedures[51].

Improved Job of Police:

While police inclusion in ADR procedures ought to be wary, their job can be advanced as donors of cooperative proof. Cops can help ADR processes by giving exact and sound data connected with the question, gathering verifiable information, and offering a policing. Cooperative proof given by the police can improve the clearness of the issues and smooth out the ADR procedures, adding to all around informed choices[52].

Foundation of Specific ADR Preparing Focuses:

To cultivate a culture of successful ADR, it is fundamental to lay out specific ADR preparing focuses inside Legal Institutes. These focuses ought to offer extensive and organized preparing programs for judges, legal counselors, Arbitrators, and court staff. The educational program ought to cover progressed ADR abilities, moral contemplations, culturally diverse correspondence, and case the board strategies. The instructional hubs would guarantee that all partners are exceptional to contribute to ADR processes, improving their quality and results.

Legal Administration and Observing System:

The prevalent legal executive ought to assume a proactive part in supporting ADR drives. They can show others how it’s done, effectively advancing the reception of ADR techniques in their courts and empowering gatherings to consider ADR prior to turning to formal case. To guarantee the viability of ADR, a vigorous checking component ought to be laid out, directing the execution, consistence, and results of ADR procedures. This component can give significant bits of knowledge to nonstop improvement and recognize regions requiring further consideration[53].

Government Responsibility and Asset Assignment:

Both bureaucratic and common state run administrations ought to apportion committed financial plans for the advancement and execution of ADR programs. Satisfactory assets ought to be dispensed to lay out and keep up with ADR focuses, give preparing, and improve public mindfulness crusades. The responsibility of government specialists to help ADR drives will build up their significance and add to their drawn out progress[54].

Compulsory Reference of Minor Offenses:

The region legal executive ought to effectively allude minor offenses and debates to existing ADR discussions. Empowering judges to evaluate cases and decide if ADR is appropriate can assist with mitigating the weight on courts, decrease delays, and give quicker goals to less serious debates. By coordinating ADR into the beginning phases of the legal interaction, minor struggles can be proficiently tended to, guaranteeing that use of court assets is being restricted[55].

Normalized Rules and Checking Components:

As a team with partners, the particular Common and Central Legislatures ought to lay out normalized rules, Standard Working Techniques (SOPs), and powerful checking systems to oversee ADR capabilities. Clear rules ought to be framed for the lead of ADR procedures, determination of arbitrators, documentation, privacy, requirement of arrangements, and detailing components. Powerful checking will assist with following ADR results, distinguish bottlenecks, and work with constant improvement[56].

By carrying out these extended proposals, Pakistan can additionally create and reinforce its ADR structure, making it a more open, productive, and powerful method for settling debates for its residents.

Implementing Alternate Dispute Resolutions in Pakistan

This pivotal chapter underscores the urgent need and strategic imperative of actualizing alternative dispute resolution (ADR) within Pakistan’s legal framework. With unwavering focus, we dive into the practicalities of translating ADR principles into actionable strategies, as previously outlined in the thesis. The exploration navigates through the intricacies of capacity-building for ADR practitioners, launching robust public awareness campaigns, and securing legislative support to establish a strong and cohesive ADR infrastructure. By accentuating these critical steps, we emphasize the transformative potential of effective ADR implementation in reshaping the contours of justice delivery, amplifying accessibility, and cultivating a culture of swift, equitable, and amicable dispute resolution throughout Pakistan.

Consideration should be given to receiving a National Action Plan to move forward and propose Alternate Dispute Resolution (ADR). A program must be formed to improve the Construction of Legitimate and Legal Boundaries, incorporating different points of view, for example, Change of Regulation, Legal Change, Legal Preparation, Legal Instruction, Mechanization and Foundation of Courts, Admission to Equity, ADR and Guidance Legitimate, Legal Sufficiency, Public Full attention and orientation response capacity[57]. The Law and Equity Commission of Pakistan is required to provide a strategic explanation on court administration that supports the ADR outcome, composed of three parts: The Equity Explanation, which illustrates all-inclusive equity values shared by enlightened countries; The Center’s Skills Framework, which provides essential information for courts to address today’s challenges; in addition, The Essential Structure, which offers benchmarks for evaluating judicial enforcement. The Commission should prepare and disseminate a comprehensive information code that presents ADR at the local level. It is suggested that the ADR base be centered in the Headquarters of each high Court, in charge of promoting, assisting and observing ADR trials in the courts.

The Pakistan Government Legal Institute should design a program focused on ADR and Case The executives. A serious introductory preparation is suggested, perhaps led by unknown intermediaries.

The selection of conciliators and middlemen, accountable to both regional and chief equity judges, should come from a different group of retired judges, high-level supporters, recognized experts, and local area figures. It is important to note that ADR has not always been vigorously adopted by the entire local legal area, and resistance might arise at first due to concerns about the possible effect on legal practice. To ensure successful ADR projects, it is essential to understand and cater to the mindsets of the local legal area and potential clients towards ADR and the general formal set of laws[58]. Basic questions arise when deciding on ADR enforcement, for example, the level of resistance from lawyers and judges, methodologies to address such resistance, the legal executive’s view and legal rationale of potential ADR clients, and how ADR task must address these points. of sight.

ADR Resistance: The ADR meeting within legitimate circles in different countries has not been met with great enthusiasm. At first, a general sentiment among legal advisors in general was one of resistance towards the filing of ADRs. This resistance stemmed from the conviction that ADR proponents intended to subvert legitimate customary practices, thus jeopardizing the reputation of lawyers as experts. ADR programs all over the planet have experienced changes in the degrees of help from nearby legitimate networks. Significantly, however, this rip current is not likely to kill off the growing popularity of ADR units on a global scale[59].

Factors Affecting ADR Prosperity: The direction of ADR prosperity is typically related to assessing and addressing legal local area views toward ADR within each neighborhood. In addition, the perspectives of ADR clients towards the established formal legitimate system assume an essential part. When examining the implementation of an ADR program, a range of basic considerations arise: (1) What are the underlying reasons and how much will legal advisers and judges oppose or reject adopting ADR? (2) How could procedures be devised to actually address this resistance or lack of help? (3) How do the expected clients of ADR view the legal executive and the broader legitimate base? what’s more (4) How could the ADR unit explore and engage these views?

Substantial Concerns and Proper Goals: There are substantial and genuine purposes behind conflicting ADR programs that need proper goals or experience the ill effects of a flawed plan. It is essential to realise that ADR is not expected to supplant the formal legal frameworks that are fundamental to maintaining law and order, correcting well-established social betrayals, giving legislative approval, or filling in the last resort debates that are beyond component measure. [60]

The Views of Legal Counsel and True ADR Ability: Extensive discussions with legal counsel of ages and changing foundations in various districts have uncovered a viewpoint that departs from the suspicions of the reformers. Unlike the belief that lawyers favor delayed case periods for monetary gain, many legal advisors actually try to achieve the quick goal of arguments. Case behavior sooner rather than later maintains unique responsibility and supports trust in the general set of laws among society at large. Interestingly, the progress of ADR programs in other countries has shown that legal advisers often become strong advocates of ADR after discovering its substantial benefits[61].

Work of legal advisers in the reception of ADR: legal advisers effectively participated in ADR within the pilot courts and are presented as essential sponsors for its wider recognition. The contribution of law students and agents of non-legislative associations, who show demonstrable interest and dynamic inclusion in ADR matters, is important in cultivating a climate conducive to ADR. Tailored preparation programs for lawyers are essential, considering their important work as essential advisers to prosecutors. Catering to lawyers’ concerns about the monetary ramifications and novelty of new debate targeting techniques becomes paramount. Affirmations of keeping up with monetary security and the possibility of single amount charges through a fruitful intervention can help reduce concerns.

Taking Care of arbitrator Deficiency: A pressing challenge arises as the lack of talented and competent middlemen. The pressing efforts are expected to provide far-reaching advocacy to prepare and galvanize legal advisers to adopt and defend the elective framework. This preparation paves the way for overcoming any barriers and ensuring effective ADR coordination, helping both the lawful local arena and the broader public seeking a productive and timely target[62].

Encouragement for Law Schools: The active involvement of law schools is imperative to expand the pool of potential mediators and arbitrators. Consideration should be given to recruiting professionals such as doctors, lawyers, university professors, and accountants, who can be trained to serve as accredited neutrals after meeting specific theoretical criteria. A special focus on recruiting women should also be pursued, not only to widen the base of arbitrators but also to enhance inclusivity and create an environment conducive to resolving disputes involving women.

Arbitrators’ Immunity and Ethical Standards: To facilitate the effective functioning of neutrals, safeguards should be established. Immunity from civil damages for actions, decisions, or omissions made during ADR proceedings, with the exception of fraudulent actions, should be granted. However, any action against a neutral should necessitate a clearance certificate issued by the Chief Justice of the High Court. Upholding ethical standards akin to those expected of High Court judges, including probity and confidentiality, is vital. Neutrals who egregiously breach ethical norms, such as accepting bribes or misusing confidential information, should be subject to criminal penalties[63].

Training for ADR Mediators and Arbitrators: Specialized training courses for potential ADR mediators and arbitrators should be developed and offered by learning institutions. These courses should be meticulously crafted, with the institutions covering the cost of course preparation and training materials. Participants seeking to become ADR specialists would pay fees to attend. The process of ADR is a concerted effort to devise a fair and workable alternative. Neutrals, including conciliators, mediators, and arbitrators, should be appointed from a panel of qualified and experienced individuals upon parties’ request[64]. To advance professionalism in ADR, the country’s institutes and law schools should offer training and education in ADR and related matters. Diplomas, certificates, and other distinctions could be awarded upon completion of such programs. Moreover, infrastructure should be developed for higher education and research in the realm of ADR. Fellowships, scholarships, and stipends could be established to foster the growth of expertise in ADR. A primary focus should center on training professional mediators and creating awareness among judges, lawyers, policymakers, litigants, and the general populace[65].

Amending the Code of Civil Procedure: An amendment to the Code of Civil Procedure should grant trial courts discretionary power to refer cases or specific aspects of cases for mediation at any stage. While the ideal juncture is after receiving the written statement, a flexible approach of “at any stage” accommodates backlog cases. Judges should receive training to refer cases to mediation, conciliation, or non-binding arbitration, ensuring parties’ agreement or judge’s discretion.

Monitoring and Oversight: A vigilant approach to ADR progress is essential. District Judges should closely monitor ADR implementation, provide updated information to the High Court, and oversee the advancement of ADR methods. Regular assessment of case disposal, monetary realisation, and other metrics will inform ongoing improvements and adjustments to the ADR framework. Just as Rome was not built in a day, fostering a successful ADR system demands sustained effort, patience, and a commitment to refinement[66].

The government assumes a fundamental role as a litigant, presenting itself either as an offended party or as a defendant. Be that as it may, in many cases, the public authority refuses to present itself when it does not see a quick interest in the situation. Inquisitively, in any case, while the questioning meetings freely reach the divisions, the public authority has the option to question such objectives later, expressing interest in the subject. This penchant for challenge can often drag out the case, adding to the weight of the overall set of laws. To improve the adequacy of the objective of alternative dispute resolution(ADR), administrative corrections must be made. In particular, the law should specify that where the public authority avoids participation because of a situation, any objective achieved through ADR or other means by the restrictive meetings becomes a restriction for the public authority.

In order to boost the use of ADR, it is crucial to encourage jokes about its current state, future development and difficulties. As per the Public Legal Strategy 2009, a meeting fully endorsed by the High Court of Pakistan and the Government Legal Foundation has been considered. It is important to encourage consideration of a model provision that promotes advocacy in business arrangements. Advocacy offers an important device for lawyers to obtain fair settlements for their clients, shifting business issues from danger to open doors. The availability of ADR as a useful targeting technique is set to prompt organizations to decide on it[67].

While habitual and casual strategies are recognized for the purpose of the debate, for example, Panchayat, it is essential to overcome verifiable obstacles. These difficulties involved the dominance of social elites, restricted legal mindfulness, alien notions, and one-sided views. ADR’s plan is not to replace consensual removal with malicious procedures, nor to eliminate casual advocacy beyond the courts. Other things being equal, ADR plans to coordinate these practices into the general set of laws, safeguarding the place of the preliminary tribunal in situations where ADR proves unsuccessful.

Great emphasis should be placed on training aimed at developing competent middle people and bringing problems to light among judges, legal advisers, legislators, prosecutors and the general public[68]. The production of a dedicated unit of capable and talented intermediates or neutrals stands firmly in the spotlight, acting as a trusted asset on which judges and interrogation groups can depend without hesitation for the help of consensual ADR processes. These suggestions advocate for designing organisations and encouraging coordinated effort at the public, local, and global levels. In addition, there is a need to plan extensive instructional educational programs that consolidate ADR standards, as well as a continuing obligation to study, evaluate, and update the feasibility of ADR methods currently in use.

In Pakistan, the progression of elective objective component is still in its early stages. However, the presentation of new arrangements that work with the reconciliation of ADRs in our legal system is commendable and contains the commitment to introduce a new period in the field of regulation. For the significant multiplication of ADR trials in Pakistan, it is critical to ensure fair access to legal assets for the rustic downtrodden by giving them access to elective legitimate adjudicators and specialists. The resulting stage is to ingrain an enthusiasm within society to embrace a takeoff from customary legal techniques. This requires a change of perspective established in the breakup, the reception of new qualities, a constantly evolving point of view and constant activity[69].

Conclusion

Taking everything into account, this discussion has investigated the unmistakable general sets of laws of Pakistan and the United Kingdom (UK), revealing an idea of their exceptional difficulties and attributes. Pakistan’s lawful structure, established in English customary regulation, has struggled to keep up with its respectability and usefulness. Despite a fully established establishment, the system has faced stubborn obstacles arising from political instability, the mediations of military regulation, and a lack of enforcement. Subsequently, the absence of an evident detachment of skills has been added to an administrative emergency and a compromised functional mode.

By contrast, the UK flaunts an unwritten constitution based on parliamentary power, augmented by devolution to subsidiary governing bodies. This multifaceted legitimate design relies on protected programs as core values. Despite the variations, the two nations share a guarantee to uphold rule of law (ROL) as a key rule. Within Pakistan’s legal structure, some basic problems thwart successful work. Uncontrolled pollution has invaded different areas, dissolving public trust and blocking the proper requirement of guidelines. Political obstruction has also subverted the independence of the general set of laws, raising questions about the fairness of legitimate elections. Disallowances of essential opportunities, such as out-of-court activities, have dissolved the foundations of law and order and confined residents’ admission to equity.

Sensing these difficulties, Pakistan has recognized the need for an Alternative Dispute Resolution (ADR) to maintain its legitimate scenario. ADR offers a reasonable course to solve problems with speed and courage. By adopting standards such as legal discussion, adhering to the ADR fundamentals, and using a comprehensive characterization of ADR systems, Pakistan can improve the effectiveness of the question targeting processes. With respect to the United Kingdom, a different display of ADR strategies has been used effectively, highlighting the flexibility and flexibility of ADR in different legitimate environments. For Pakistan, the advantages of ADR are manifold. Taken together, they may lighten the burden of the formal legal framework, speed up deliverance of justicd, and restore public confidence in the legal structure. Fitting ADR components to explicit spaces, including personal expenses, family cases, and employment regulations, is guaranteed to yield fine-tuned targets for a variety of questions. The implementation of ADR in Pakistan requires a multi-tiered approach. This includes limiting work for ADR practitioners, initiating public mindfulness missions to present the benefits of ADR, and instituting regulatory help to design a powerful structure. By adopting these techniques, Pakistan can improve its overall set of laws, support law and order, and improve residents’ admission to equity. In summary, this thesis has examined the general sets of laws of Pakistan and the United Kingdom, distinguishing particular difficulties and open doors. Through dedicated efforts, Pakistan can chart a path towards a smoother and more impartial general set of laws, which adds to cultural prosperity and enhances its stay within the world’s legal ranking and of course ADR will play vital role in it.

Bibliography

Books

An Analysis of The Theory And Principles Of Alternative Dispute Resolution by John Andrew Faris.
Effect of British Colonization on Pakistan’s Legal System by Ayesha Majid.
Introduction to the British legal system by Martin Partington,

Journals

‘Alternative Dispute Resolution in the Contemporary World. Global International Relations Review’ by Begum, M., Khan, S. A., & Khan, M. Z.
Zafar Iqbal Kalanauri, ‘ Implementation strategy for ADR in Pakistan ‘ [2019].
Syed Kaleem Imam, ‘ Alternative Dispute Resolution (ADR) For Prompt Disposal of Cases’ [ 2020] PJC.
Iftikhar Ahmad Tarar , ‘ Alternative Dispute Resolution: Road less Travelled in Pakistan’ [ 2012] AL

Online Journals

‘Introduction to the Pakistani Legal System, with special reference to the Law of Contract’ by Martin Lau,

HeinOnline<https://heinonline.org/HOL/LandingPage?handle=hein.journals/yislamie1&div=9&id=&page=> accessed 1 August 2023

‘Legal Systems in the UK (England and Wales): Overview’ by Professor Suzanne Rab, S Court,

<https://uk.practicallaw.thomsonreuters.com/5-636-2498?contextData=(sc.Default)> Accessed: 05 August 2023.

Pakistan Legal System.

Available at: https://www.globalsecurity.org/military/world/pakistan/legal-system.htm (Accessed: 06 August 2023).

‘Why do people in Pakistan avoid seeking court remedies? failure of Pakistan’s judiciary?’ by Issa Rizvi,

<https://courtingthelaw.com/2022/06/18/commentary/guest-columnists/why-do-people-in-pakistan-avoid-seeking-court-remedies-failure-of-pakistans-judiciary/ > Accessed: 06 August

Alternate dispute resolution (2022)

<https://las.org.pk/thematic-streams/access-to-justice/alternate-dispute-resolution/ > Accessed on 06 August 2023.

Legislation

Alternative dispute resolution for consumers (2005) <https://www.gov.uk/government/publications/alternative-dispute-resolution-for-consumers/alternative-dispute-resolution-for-consumers>

[1] Martin Lau, ‘Introduction to the Pakistani Legal System, with special reference to the Law of Contract’

HeinOnline <https://heinonline.org/HOL/LandingPage?handle=hein.journals/yislamie1&div=9&id=&page=> accessed 1 August 2023

[2] ibid

[3]Ayesha Majid, ‘Effect of British Colonization on Pakistan’s Legal System’, [2017] Pg 10

[4] Ibid

[5] Martin Partington, Introduction to the British legal system (25^th edition, OUP, 2021)

[6] Professor Suzanne Rab, S Court, ‘Legal Systems in the UK (England and Wales): Overview’ (2022)

<https://uk.practicallaw.thomsonreuters.com/5-636-2498?contextData=(sc.Default)> Accessed: 05 August 2023.

[7]Pakistan Legal System (2017) https://www.globalsecurity.org/military/world/pakistan/legal-system.htm (Accessed: 06 August 2023).

[8] ibid

[9] ibid

[10]ibid

[11] Issa Rizvi, ‘Why do people in Pakistan avoid seeking court remedies? failure of Pakistan’s judiciary?’ (2022) Courting The Law <https://courtingthelaw.com/2022/06/18/commentary/guest-columnists/why-do-people-in-pakistan-avoid-seeking-court-remedies-failure-of-pakistans-judiciary/ > Accessed: 06 August 2023.

[12] ibid

[13] ibid

[14] ibid

[15] Alternate dispute resolution (2022)

Legal Aid Society. <https://las.org.pk/thematic-streams/access-to-justice/alternate-dispute-resolution/ > Accessed on 06 August 2023.

[16] Ibid

[17] Ibid

[18] Zeeshan Ali, ‘Alternative dispute resolution: A paradigm shift in Pakistan’s justice system?’ (2017), The Asia Foundation <https://asiafoundation.org/2017/07/26/alternative-dispute-resolution-paradigm-shift-pakistans-justice-system/ > Accessed on 06 August 2023.

[19] ibid

[20] ibid

[21] Basic Principles of ADR’ (California Public Utilities Commission) <https://www.cpuc.ca.gov/proceedings-and-rulemaking/alternative-dispute-resolution/basic-principles-of-adr> accessed 9 August 2023

[22] ibid

[23] ibid

[24] Principles of ADR (2016) Adrac < https://www.adrac.org.au/principles-of-adr> accessed 10^th August 2023

[25] ibid

[26] Begum, M., Khan, S. A., & Khan, M. Z. ‘Alternative Dispute Resolution in the Contemporary World. Global International Relations Review’,(2022) V(III), pg 11-16.

[27] ibid

[28] Ibid

[29] Ibid

[30] Ibid

[31] John Andrew Faris, An Analysis Of The Theory And Principles Of Alternative Dispute Resolution (1st, , E.G. Oxford 1995) E.G. 15

[32] ibid

[33] ibid

[34] ibid

[35] ibid

[36] John Andrew Faris, An Analysis Of The Theory And Principles Of Alternative Dispute Resolution (1^stedn, Oxford 1995) Pg15

[37] Alternative dispute resolution for consumers (2005) < https://www.gov.uk/government/publications/alternative-dispute-resolution-for-consumers/alternative-dispute-resolution-for-consumers> accessed on 10 August 2023

[38] ibid

[39] Anum Idrim, ‘Alternative Dispute Resolution’ (2018) Legal Education and access portal <https://leappakistan.com/alternative-dispute-resolution/> accessed on 1 August 2023.

[40] ibid

[41] ibid

[42] ibid

[43] ibid

[44] ibid

[45] Ibid

[46] Iftikhar Ahmad Tarar , ‘ Alternative Dispute Resolution: Road less Travelled in Pakistan’ [ 2012] AL A

[47] ibid

[48] Syed Kaleem Imam, ‘ Alternative Dispute Resolution (ADR) For Prompt Disposal of Cases’ [ 2020] PJC

[49] ibid

[50] ibid

[51] ibid

[52] ibid

[53] ibid

[54] ibid

[55] ibid

[56] ibid

[57] Zafar Iqbal Kalanauri, ‘ Implementation strategy for ADR in Pakistan ‘ [2019]

[58] ibid

[59] ibid

[60] ibid

[61] ibid

[62] Zafar Iqbal Kalanauri, ‘ Implementation strategy for ADR in Pakistan ‘ [2019]

[63] ibid

[64] ibid

[65] ibid

[66] ibid

[67] ibid

[68] ibid

[69] ibid

An arbitrator is a judge hired by the parties by H. Bilal

Table of Contents

Introduction. 2
Similarities. 2
Legal duties. 3
Fairness. 3
Differences. 3
Speed. 4
Appointment 4
Costs. 4
Convenience/Cooperation. 4
Privacy. 5
Binding decisions. 5
Appeal 5
Choosing Litigation. 5
Criticism.. 6
Conclusion. 8
Bibliography. 9

1. Introduction

In the past few decades, Arbitration got to be omnipresent, as the parties are free in their choice of a tribunal, the finest appropriate strategy and broadly unhindered by national rules unless due handle is assured.[1] Subsequently, arbitration plays an imperative part to resolve cross-border disputes, as the award is final and enforceable by law. It is enforceable in approximately 160 countries of the world following the 1958 New York Convention.

Arbitration in English and Welsh is governed by the 1996 Arbitration Act. This judgment does not affect the cases at hand, but it adds legitimacy to arbitration. Arbitration agreements are made easy to read, use and follow by this method. This act lays rules for arbitrators to decide the matters fairly and swiftly. It respects and supports the Party’s authority, which is useful in that respect. This means that disputing parties have the option of using arbitration to their own advantage. The Law confers on arbitrators the power of making decisions, makes arbitration lawful, and gives people the option of resolving disputes by means of arbitration.[2]

The explanation “An Arbitrator is a judge hired by parties” disentangles the role of an arbitrator but too neglects significant refinements between arbitrators and judges. Whereas there are likenesses in their capacities, they work inside distinctive systems and have particular powers.

Arbitrators are named by common understanding between disputing parties to resolve clashes outside of court. They manage over arbitration procedures and make choices based on the evidence presented, comparative to a judge. Be that as it may, they do not hold the same power as judges have in a court of law. Instead, their authorities emerge from the parties’ understanding to stand by their choice, frequently laid out in a formal contract or arbitration agreement.[3]

On the other hand, judges are named by the government and infer their authority from the lawful framework. They preside over the cases brought Infront of them to decide and they have powers to implement the Law, compel evidence and make decisions which are legally binding. Their powers are not limited to the understandings of the included parties instead are derived from statutory and constitutional law.[4]

There are number of similarities and differences in the judges of courts and arbitrators, but it is an adamant fact that arbitration is rapidly adopting way to settle the disputes because of its process and flexibility to both parties. In this paperwork we will look at the similarities and differences between both process and then will critically analyse their impact on resolving the disputes and delivering the justice.

2. Similarities

Courts are very important instrument of the government machinery, as they are the oldest method to resolve conflicts, ensure the smooth running of the other government departments and are custodian of Justice. Courts play an important role as watchdog when separation of powers exists.[5] The judiciary is morally composed of judges, who are the court’s officials and courts have usually been set up by law to serve as a focal point for judicial activities. Whereas Arbitration is a procedure in which a neutral third party, having listened to the parties at a relatively informal hearing, makes a binding decision on the dispute.[6] Arbitration was also defined as a means of resolving disputes where the parties agree that an arbitration panel shall decide on them, with which they are obliged to comply.[7] Though the origin and process of both above mentioned system is different but their purpose is same, which is to dissolve the dispute and provide the remedy to the aggrieved. There are similarities in both arbitrators and judges, we can see some examples below.

A. Legal duties

One essential likeness between arbitrators and judges lies in their adjudicatory work. Both evaluate evidence, apply the law, and provide decisions pointed at settling disputes.

The arbitrator, as a judge, has the power to make decisions and award damages in the light of evidence and arguments put forward in the arbitration proceedings. Arbitrators and judges both conduct hearings, preside over the presentation of evidence, and manage the procedure to reach the final decision[8].

Like the judges in the courts, arbitrators also decide the matter based on their legal acumen. They need to have better understanding of law, its implication, system, and ability to deal with the complex arbitration cases. Anyone appointed as an arbitrator must know the law to make a capable, well founded, and lawful decision.

The arbitrators like judges must have to update their legal knowledge constantly in order to decide the matters in their best manner and must also know how to deal with a troublesome case decently. They can benefit the parties of arbitration with their well-versed self in law and the disputed matter so that they can be trusted by the parties to make agreeable decisions.

In short, the judges and arbitrators both try to uphold the law. These people ensure the legal process is complete and follows the law.

B. Fairness

When parties go for arbitration, they are desirous of arbitrators to be unbiased and impartial just like judges of any other court of law. Fairness and justice are the most important foundations of arbitration and law.[9]

Arbitrators just like judges have to make a fair decision upon their understanding of the dispute.

3. Differences

In selecting the appropriate dispute resolution mechanism, it is essential to understand the differences of arbitrator and judge. Arbitration could be preferred because of its flexibility, confidentiality, and expediency, while judicial proceedings offer the possibility of establishing legal precedents and having a wider impact on the legal system. The role of arbitrators is essentially different from that of a judge, with the key issues such as jurisdiction, basis for making decisions or wider impact on the legal landscape being considerably different. Understanding the functioning of dispute resolution mechanisms within legal frameworks is facilitated by recognising these distinctions. Below are some considerable distinctions between arbitration/arbitrators and Judicial proceedings/judges.

a. Speed

The arbitration process moves rapidly as soon as the parties choose to go through with it. That’s one of the most important advantages of arbitration versus litigation. The dispute shall be brought before an arbitration body, the parties may mutually decide to appoint arbitrators and a hearing will take place. While a summary judgment may be granted, hearings are normally held in the case.[10]

One of the main reasons for some small businesses to enter into arbitration agreements is the speed of resolution. According to the American Bar Association’s research, the average duration of arbitration cases is about seven months, while the average duration of litigation is 23 to 30 months, depending on the court schedule.[11]

b. Appointment

In order to settle conflicts in an alternative judicial system, arbitrators are chosen by the disputing parties. It is customary to appoint them based on an arbitration agreement or a contractual clause, which indicates consensual choice made by interested parties. The role and powers of arbitrators differ from that of judges. On the other hand, there is a distinct position of judges within the formal legal order. They shall be designated or elected based on legislative frameworks, and they shall serve as autonomous decision makers. Their jurisdiction is derived from a constitutional or statutory mandate and covers not only those parties involved in the dispute but also set the precedents for upcoming matters and binding on lower courts.[12]

c. Costs

In arbitration clients always look for ways of saving money all the time. Arbitration wins when cost is a factor in the dispute resolution process. Arbitration entails limited discovery, a lack of pre-trial depositions, the authentication of documents and qualifications of experts. If arbitrator’s client enters into a dispute, his experience and knowledge of the arbitration process can help him stand out from the competition and keep him alert.[13]

d. Convenience/Cooperation

The arbitration process may be simpler and more convenient for the parties concerned, as it does not take place in front of a judge. The hearing takes place in a private room, so there’s no problem with the court calendar. In view of the absence of jurisdiction, the location may be a simpler logistical element of the procedure. An arbitrator, often from a mutually agreed arbitration group, shall be appointed.[14]

Maintaining a cooperative atmosphere is important, given that the parties to arbitration are often business associates. The parties shall be encouraged to actively participate in the resolution process and, where appropriate, to assist in the formulation of the decision itself. In contrast to litigation, the arbitration process is a more amicable way of resolving disputes with less pain and resentment. The numerous complicating factors of the litigation can make it difficult to continue business with each other.

e. Privacy

The fact that the hearing is held behind closed doors represents a clear benefit of arbitration. There’s no public court record filed. The small business clients benefit from the protection of their trade secrets or intangibles that may be a basis for their businesses. The hearing shall not be open to any other party, including press or competing parties. However, confidentiality is not guaranteed, as privacy is part of the arbitration process. The laws governing the place of arbitration and the rules laid down in a business contract shall determine confidentiality.[15]

f. Binding decisions

In more than 160 countries’ courts, a decision of the arbitrator may be enforced in general. While a binding decision can help the two parties move on, if your client feels they have not reached an adequate resolution, he or she has little to do.[16] The arbitrator’s decision is, in principle, considered final without any evidence of prejudice or fraud on his part.

The binding nature of their decisions is one of the main differences. Arbitrators’ rulings are typically binding and enforceable in court, but they are limited to the specific dispute and lack the precedential value of court judgments. On the contrary, decisions of judges establish precedents and influence other interpretations of law with a view to affecting wider aspects of proceedings.

g. Appeal

The fact that the decision may be contested in an appeal review is one of the main comparative advantages of litigation. The primary comparative benefit of litigation is that the decision can be challenged in an appellate review.

The dispute is settled without going to court in a majority of cases. Sometimes it’s said that a inadequate or poor settlement is better than an adequate suit. Dispute settlement is the best and most effective way to resolve disputes, since you cannot be sure that your client will win at trial.[17]

4. Choosing Litigation

Why do parties still go to court, given all the factors which suggest that arbitration is the most appropriate way of resolving disputes between SMEs (Small and Medium-sized Enterprises)? If litigation is the answer, who’s going to win in arbitration vs. litigation? If one of the parties is unwilling to go to arbitration, or if it has not been written into the contract, litigation is the solution. It is a centuries old method of settlement: in court, before the judge and possibly at trial.[18] This may be acrimonious, invasive, and costly but it is an efficient way of ending the dispute. There are number of factors affecting the decisions of corporation to go to court instead of arbitration, some examples are:

Arbitration is generally considered as cost effective and cheaper than litigation because of its nature of providing swift relief but some organisations mostly SMEs choose to go to the court if they think that cost of arbitration will outweigh the advantage of getting a swift relief.
Arbitration decisions are not binding on other cases and are not disclose in public thus creating the complete confidentiality however some parties prefer to go to the court to make the proceedings public and binding on the future similar cases.
The awards are arbitration are enforceable under the New York Convention, but some businesses prefer to go to the court for more formalised enforcement system and broad range of options for appealing the decision.
The proceeding of arbitration is generally private with low risk of disclosing the cooperate secrets, but some companies prefer to go to the court for transparency and of matter and involving the public, they mostly do this when the nature of their business depends upon public trust on them. So, open trail enhances the perceived fairness and help gaining trust of people.
For arbitration disputing parties need to have an agreement for arbitration or should consent for this process. So, when any party is unwilling for arbitration or there is no consensual agreement for arbitration then disputing parties may choose to go the court.
Although the arbitrators may also issue the interim remedies, but some parties prefer to go to the court for interim remedies and they mostly prefer court in the matters where the immediate court intervention is required or there is risk of irreparable harm in case of delay.
Although arbitration is famous for its flexible nature and suitable for handling the complex cases but sometimes corporations with complex matters prefer to go to the court when they feel that certain matter should be dealt under the well-established court system and laws of accepting the evidences must be followed to reach the well-informed decision.

In short, the decision to go to court is influenced by factors such as cost considerations, legal precedent, enforceability, the complexity of the issues, the need for interim relief, mutual agreement, and the public perception of the dispute resolution process, while arbitration offers many advantages in resolving disputes. The specific circumstances and priorities of the parties concerned ultimately determine whether arbitration or litigation is to be chosen.

5. Criticism

According to the 2021 Global Arbitration Review most of the people showed concern on arbitration process. People were worried about the open scenes of the courts where there is no privacy in dealing the matters specially when the confidential business information can be disclosed to general public effecting the business reputation. Arbitration provides the peace of mind to corporation about the privacy as it keeps information private[19]. But the fact that it’s happening in secret is making people nervous, and they don’t know who’s to blame or how easy it will be for them to get justice. People who don’t like it say that it needs to be open to the public so that they can trust it and so that they can’t hide their choices and actions that are not honest or fair. This criticism can be resolved by deriving a procedure that set the rules and mechanism forcing arbitrators to disclose certain information. The best option for arbitrators is that they should tell everybody about any potential conflicts of interest[20]. It would bring about more transparency and accountability. In order to help people, understand why certain decisions have been made while safeguarding the confidentiality of private information, some judgments and important court orders may be published. In a review conducted in 2021 an objection was raised on the knowledge and understandings of arbitrators. In many areas of law, the majority of judges have a good understanding. They’re spending a lot of time on the bench, and they train hard. Judges come from all walks of life, including business, education, law and so on. Some lawyers do very well in certain fields of law, while others are great at all things. On other hand If participants do not agree on the interpretation of laws, Judicial decisions or common concepts in law, arbitration outcomes can be ambiguous[21].

Another major criticism on arbitration is the fact that there is no formal procedure for the adoption of case law in which arbitration differs from ordinary courts. Judges’ decisions lay down a standard for the rest of the judges. Nevertheless, arbitrators’ decisions are kept confidential and do not affect the cases to follow. Over time, the idea of a law that promotes arbitration has evolved very little, which is odd since it differs from other ways to resolve disputes[22]. Setting a precedent is never easy, so arbitrators can differ in their answers to the same questions on several issues. Some argue that the arbitration process is more fragile because there are no rules to which everyone agrees. Each arbitrator may, in his or her own way, give a decision and interpretation of the law if there are no obvious examples for dealing with similar legal problems.

Apart from Transparency and unavailability of biding case law another criticism on Arbitration is about the biasness of arbitrators. In arbitration parties have freedom to choose their own judge this freedom can cause biasness. The parties may choose which justices will hear the case, taking into account its difficulty and necessity but this freedom is at risk because of imbalances in power. People can be biased when there is more money, power or influence on either side. The selection of judges is to blame for this. This means that both legal and moral considerations must be taken into account in the review process. Arbitrators, like ordinary courts, may lay down individuals on the basis of what is best for each party. Arbitrators may be less impartial than judges because they have close relationships with their decision makers[23]. It is difficult to comprehend conflicts of interest, but it is quite important to know the transparency of the procedure and how well each side understands its rules. There is a need for clarity in a number of arbitration rules. Arbitration is flexible, whereas the rules of the court are strict. This may contribute to the change of processes. However, this may lead to misinterpretation and biased statements when evidence is presented, and questions are posed.

6. Conclusion

To conclude it can be said that the statement does not take into account their respective roles and sources of power while suggesting a similarity between arbitrators and Judges. In order to understand the functioning of dispute resolution mechanisms within the legal framework, it is essential to understand the distinction. Arbitration is a key alternative dispute resolution mechanism, which is often compared to judicial proceedings because of its impartial nature. An aspect of that similarity can be summarised in the statement “An arbitrator is a judge appointed by the parties”, but it requires careful examination to understand the various distinctions and similarities between arbitrators and judges.

One of the primary similarities between arbitrators and judges is that both assess the evidence, apply the law, and make decisions with a view to resolve disputes. However, the basis of their authority and the nature of their decisions diverge significantly.

Arbitrators are empowered only on the basis of an agreement between the parties, and a chosen arbitration procedure restricted to that dispute in question. Their decisions are enforceable, but they do not provide any precedent in the case of an immediate dispute. On the other hand, judges operate in a legal system that generates precedents, develops future interpretations of law, and impacts on more than one type of case.

In cases where arbitration is a complement to court proceedings, e.g., in commercial disputes, this distinction can be seen. Corporates and business entities choose arbitration to have swift resolution, maintain their confidentiality and to have access to the decision maker. On the other hand, decisions by courts set legal precedents that influence a wider legal landscape and provide guidance to subsequent cases.

Finally, while this statement “An arbitrator is a judge hired by the parties” promotes the role of arbitrators and judges as impartial decision makers, it does not simplify their functions or sources of power. In order to understand the dynamics of dispute resolution mechanisms and their impact on judicial systems, it is crucial that we have a clear understanding of the distinction between arbitration and legal system.

7. Bibliography

Books

Born International Commercial Arbitration. Kluwer Law International, (2014)
Born, Gary. “International Commercial Arbitration”, (Oxford University Press), (2019), 3rd ed.
Park, William W. International Arbitration: Law and Practice, Oxford University Press, (2021),8th ed.
Nigel Blackaby, Constantine P. Alan R Martin, “Hunter Redfern & Hunter on International Arbitration” (2014).

Articles/ Journals

Rothmund, T., Bromme, L., & Azevedo, F. “Justice for the people? How justice sensitivity can foster and impair support for populist radical‐right parties and politicians in the United States and in Germany”. Political Psychology, (2020). 41(3), 479-497.
Maloku, E., Jasarevic, O., & Maloku, A. “Assistance of the psychologist expert in the justice bodies to protect minors in Kosovo”. EUREKA: Social and Humanities, (2021),(2), 52-60.
Buchwald, M. “Smart contract dispute resolution: The inescapable flaws of blockchain-based arbitration”. (2019), Pa. L. Rev., 168, 1369.
Chandrasekher, A. C., & Horton, D. “Arbitration Nation: Data from Four Providers”, (2019), L. Rev., 107, 1.
Arbitration vs. litigation: the differences, Thomson Reuter April 2022 <Access online on 10^th Jan 2024>
Simon Sloane, D. Hayward and R. McKee ‘Due Process and Procedural Irregularities: Challenges’ in J William Rowley QC (ed), Global Arbitration Review: The Guide to Challenging and
Enforcing Arbitration Awards (Law Business Research 2019). <Access online on 12 Jan 2024>
Arbitration vs. Litigation: A Comparative Analysis” by Catherine A. Rogers, Penn State Law Review, 2003. <Access online on 12 Jan 2024>
Queen Mary University of London, Global Arbitration Review 2022.
ADMINISTRATION OF JUSTICE), Journal of Asian and African Social Science and Humanities, Vol. 1, No. 1, 2015, Pages 129-145

[1] Simon Sloane, D. Hayward and R. McKee ‘Due Process and Procedural Irregularities: Challenges’ in J William Rowley QC (ed), Global Arbitration Review: The Guide to Challenging and Enforcing Arbitration Awards (Law Business Research 2019).

[2] Queen Mary University of London, Global Arbitration Review 2022.

[3], Nigel Blackaby, Constantine P. Alan R., Martin H., “Redfern & Hunter on International Arbitration”, (2014)

[4] ibid

[5] Adeola A. Oluwabiyi, “AN OVERVIEW OF SIMILARITIES BETWEEN CUSTOMARY ARBITRATION AND NATIVE COURTS AS PLATFORMS OF ADMINISTRATION OF JUSTICE”, Journal of Asian and African Social Science and Humanities, (2015), Vol. 1, No. 1, , Pages 129-145

[6] ibid

[7] ibid

[8] G. Born, “International Commercial Arbitration”. Kluwer Law International, (2014)

[9] Born, Gary. International Commercial Arbitration, Oxford University Press, (2019), 3rd ed.

[10] ibid

[11] Arbitration vs. litigation: the differences, Thomson Reuter April (2022) <Access on 10^th Jan 2022>

[12] Arbitration vs. Litigation: A Comparative Analysis” by Catherine A. Rogers, Penn State Law Review, (2003)

[13] Arbitration vs. litigation: the differences, Thomson Reuter April (2022) <Access on 10^th Jan 2022>

[14] ibid

[15] Arbitration vs. litigation: the differences, Thomson Reuter April 2022 <Access on 10^th Jan 2022>

[16] Simon Sloane, D.Hayward and R.McKee (Due Process and Procedural Irregularities:

Challenges’ in J William Rowley QC (ed), Global Arbitration Review), The Guide to Challenging and

Enforcing Arbitration Awards (Law Business Research 2019).

[17] ibid

[18] Arbitration vs. litigation: the differences, Thomson Reuter April 2022 <Access on 10^th Jan 2022>

[19] M. Buchwald, (M. Smart contract dispute resolution: The inescapable flaws of blockchain-based arbitration)(2019), U. Pa. L. Rev., 168, 1369.

[20] Rothmund, T., Bromme, L., & Azevedo, F. “Justice for the people? How justice sensitivity can foster and impair support for populist radical‐right parties and politicians in the United States and in Germany” (2020), Political Psychology, 41(3), 479-497.

[21] Park, William W. I”nternational Arbitration: Law and Practice,”(Oxford University Press), (2021), 8th ed

[22] Chandrasekher, A. C., & Horton, D. Arbitration Nation: Data from Four Providers. (2019)Calif. L. Rev., 107, 1.

[23] Maloku, E., Jasarevic, O., & Maloku, A. “Assistance of the psychologist expert in the justice bodies to protect minors in Kosovo”. EUREKA: Social and Humanities, (2021) (2), 52-60.

Can arbitration award be challenged or appealed under the Arbitration Act 1996 in the courts of England and Wales? By H.Bilal

Introduction

Within the advanced corporate world, globalisation and innovative headway have opened modern openings for businesspersons and companies to interact with each other. To do trade together, both parties must enter contracts that administer their intuitive and trades. It is a prevalent occurrence for commercial disputes to arise on significant matters, necessitating the implementation of an efficient conflict resolution mechanism. Arbitration is a frequently favoured form of mechanism for settling disputes. In order to establish an equitable resolution that is deemed trustworthy by involved parties, it is necessary for the arbitrator to exhibit characteristics of fairness, independence, neutrality, and impartiality. As UK jurist Lord Denning famously remarked, “Justice must be rooted in confidence, and confidence is destroyed when right-minded people go away thinking, ‘that judge was biased.’”[1] Arbitration is no different; indeed given the more private, closed nature of arbitration, there should be a view that justice is administered with due diligence and parties are satisfied with the administration of justice, and if some side thinks that there has been some mistreatment in the process, they should be able challenge or appeal the award of the arbitration . With this understanding, the current essay evaluates the grounds on which an arbitration award can be challenged or appealed under the Arbitration Act 1996 in the courts of England and Wales. These grounds are commonly believed to be satisfactory in guaranteeing that arbitration awards are equitable and impartial. Notwithstanding, there exists a school of thought contending that the grounds for challenge or appeal ought to be modified or revised in order to be more accurately align with contemporary business conditions. So this essay will also point towards some of the proposed amendments for the sake of satisfaction of all parties involved in arbitration.

Grounds to challenge the arbitral award:

The Arbitration act 1996 stipulates that an arbitral award may only be disputed or appealed on limited grounds, thereby aligning with the Act’s primary objective of facilitating effective and conclusive resolution of disputes via arbitration.

One may seek redress by initiating legal proceedings within the national courts of the jurisdiction where the arbitration took place, with the intention of annulling or partially setting aside the award. It is recommended that one refrains from challenging the validity of an arbitral award until the victorious party attempts to implement it in a domestic tribunal and subsequently resists its execution under the New York Convention (or any other pertinent legislation or agreement).

It is within the purview of the English courts to entertain a challenge against an award on grounds of either the absence of substantive jurisdiction (as stipulated in Act, section 67) or significant irregularity (as indicated in Act, section 68). As prescribed by Section 4(1) of the Act, these provisions are deemed compulsory and cannot be waived by mutual agreement between the involved parties[2].

In accordance with arbitration act an award may be subject to a legal appeal based on a question of English law, except in cases where the parties have waived their right to appeal. This waiver can be enacted through the selection of institutional rules, such as the London Court of International Arbitration Rules or the International Chamber of Commerce Rules, which include provisions for the exclusion of appeal rights[3].

Lack of substantive jurisdiction

Pursuant to Arbitration Act, a contestation of an award may be pursued subsequent to the issuance of the tribunal’s jurisdictional award or, alternately, following the issuance of the tribunal’s conclusive award[4]. The term ‘Substantive jurisdiction’ is delineated within the given Act by evaluating the presence of three criteria, namely: (1) the existence of a legitimate arbitration agreement, (2) the appropriate composition of the tribunal, and (3) the alignment of the subject matter subjected to arbitration with the terms stipulated in the arbitration agreement[5]. The adjudication of an application, pursued within the prescribed timeline as specified under Section 67, necessitates a comprehensive reappraisal of the case. This legal assertion is supported by the judicial pronouncement delivered in the case of Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan[6], as indicated in the remarks offered by Lord Mance SCJ at paragraph 26. As per the provisions of the Act (section 67(3)), it is well established that the court possesses the authority to either ratify, modify or annul the award in its entirety or partially.

The case of Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb, was concerned with the determination of a governing law for an arbitration agreement[7]. The Supreme Court laid down the principle that in cases where the parties have not specifically stipulated a governing law for their arbitration agreement, two principles will apply: firstly, if the arbitration agreement forms part of a wider agreement which has a governing law provision, the same law will generally govern the arbitration agreement; and secondly, in the absence of such provision, the system of law with which the arbitration agreement has the closest connection will govern, which will typically be the law of the seat of the arbitration.

A party’s ability to contest an award before the English courts, based on a lack of substantive jurisdiction, may be forfeited if the jurisdictional objection has not been raised before the tribunal in compliance with the time limits prescribed in section 31 of the governing legislation[8]. However, the challenging party may avoid this outcome if it can demonstrate that, at the time it participated in the arbitration proceedings, it was unaware of the grounds for the jurisdictional objection and could not have discovered them through reasonable diligence[9].

Serious irregularity

Under the provisions of section 68 of the Act, it is possible for an award to be subject to legal challenge in the event of the occurrence of a significant irregularity that impacts either the tribunal, the proceedings, or the award itself. Such irregularities can give rise to legal action and judicial intervention. As stipulated in Act, the term ‘serious irregularity’ refers to one or multiple irregularities, as identified in an inclusive list below, that have resulted in significant prejudice to the applicant[10]:

The failure of the tribunal to adhere to the general duties delineated in section 33 of the aforementioned Act, which include:

To demonstrate equitable and unbiased conduct towards all involved parties, it is essential to provide each party with a fair and reasonable opportunity to present their arguments and address those of their opponents. This principle is exemplified in the case of P (a company incorporated in Country A) v D (a company incorporated in Country B) and others, where the tribunal’s decision was overturned due to a fundamental question of credibility that had not been posed to a witness during cross-examination[11]. And
In order to ensure a just resolution of the matters at hand, it is recommended that appropriate procedures be adopted, taking into account the specific circumstances of the case. This should be done with a view towards avoiding undue delay or expense.

The tribunal has been found to have overstepped its authority, with the exception of instances where it has gone beyond the scope of its substantive jurisdiction.
In the event, that the tribunal omits to adhere to the procedure that has been agreed upon by the involved parties, or in case it fails to address all the relevant matters that have been presented before it, it may be deemed as a failure on its part to conduct the proceedings appropriately.
The arbitration institution in question has engaged in overstepping its legal bounds and has acted beyond its prescribed authority.
There exists a level of uncertainty or ambiguity pertaining to the potential impact of an award.
The attainment of an award through fraudulent means or through procurement methods that contravene public policy.
Non- adherence to the prescribed regulations concerning the stipulations of the award’s format.
Any deviation from the standard course of proceedings or deficiency in the decision rendered, that is sanctioned by the tribunal or pertinent arbitral body.

If substantial deviations are detected, the court possesses the authority to refer the entirety or a fraction of the verdict back to the tribunal for review, or nullify the award altogether, either in its entirety or partially[12]. In accordance with Section 68(3) of the Act, it is imperative for the court to refrain from utilizing its authority to nullify or invalidate an award, unless it has obtained sufficient reassurance that remitting the relevant matters to the arbitration tribunal for re-evaluation would be unsuitable.

If the award is referred to the tribunal, it is imperative for the tribunal to issue a novel award concerning the pertinent matters within a maximum timeframe of three months mandated by the court’s directive, or any other alternative time frame specified by the court in accordance with the applicable Act[13]. Similar to section 67, the capacity to contest an award founded on a significant irregularity may be forfeited if the objection has not been timely raised with the arbitral tribunal, as pursuant to the regulations laid out in section 73(1) of the aforementioned Act.

Appeal on a question of law

Section 69 of the aforementioned Act confers upon the concerned parties the prerogative to pursue an appeal in the English courts with regard to any legal inquiry emerging from the arbitration award, provided such right has not been previously renounced by mutual agreement. In the absence of unanimous concurrence among all parties, the act of lodging an appeal on an issue related to the interpretation or application of the law can solely be pursued upon obtaining prior authorization from the court. The authorization to appeal shall be conferred solely on the condition that:

The adjudication of a legal issue holds significant implications for the entitlements of one or more involved parties and is a matter that the governing arbitrative body was solicited to settle.
Based on the factual findings presented in the award, the decision rendered by the tribunal in relation to the pertinent legal issue is determined.

is obviously wrong; or
concerns a question of general public importance and is at least open to serious doubt.

In accordance with section 69(3) of the Act, the court is deemed to be justified in ascertaining the matter at hand, regardless of the involved parties’ accord to settle the disagreement through arbitration.

Pursuant to the provision of section 69, the court is conferred with the authority to confirm, modify, annul or refer back the decision of the arbitral tribunal for re-evaluation, either completely or partially[14]. In accordance with section 69(7) of the Act, the court is precluded from utilising its authority to vacate the award unless it has discerned and established that it would be untenable to refer the associated issues back to the arbitral tribunal for further deliberation.

Prior, to pursuing a challenge or appeal before the courts, it is imperative that a party duly exhaust all existing recourse or appeal mechanisms available before the tribunal, in accordance with section 70(2) of the relevant legislation.

Can challenge or appeal proceedings be stayed?

In accordance with the provisions of sections 67-68 of the Arbitration Act 1996, it has been established that the grant of a case management stay of challenge proceedings shall only be allowed under exceptional circumstances. As per the judgments provided in the cases of Minister of Finance v IPIC (Court of Appeal) and Reichhold Norway v Goldman Sachs[15], the presence of compelling grounds is deemed necessary for the issuance of such stay. Undoubtedly, in instances where challenge applications are submitted, the court bears an initial responsibility to examine and deliberate upon them swiftly and efficiently. According to the Court of Appeal, its scrutiny of an award is not limited to enforcing the agreement of the parties but entails the discharge of a crucial public function.[16]

In other words, the Court must determine whether the award in question merits the state’s coercive authority, both domestically and internationally, for its validation and execution (Minister of Finance v IPIC). According to recent rulings in the English courts, it is deemed appropriate to extend the use of case management stays in instances where judicial review is being sought in relation to a tribunal’s jurisdiction, as set out under Arbitration act 1996, section 67 or 72, only in exceptional circumstances. This ruling was made in cases such as Hashwani v OMV Maurice Energy[17] and Minister of Finance v IPIC[18], as upheld by the Court of Appeal. It is important to note that in accordance with Section 9 of the Arbitration Act 1996, a stay of challenge proceedings, as prescribed under Sections 67-68 of the same Act, shall not be rendered available. This is consequent to the ruling in the Minister of Finance v IPIC case wherein permission to appeal the decision made by the High Court was not granted.

In the case of Minister of Finance v IPIC, the Court of Appeal neglected to contemplate the possibility of adopting a comparable methodology with regard to a potential suspension of an appeal against a legal point in an award pursuant to section 69 of the Arbitration Act 1996. The possibility may exist that a separate tribunal is currently deliberating upon the same legal issue that is under appeal to the court. Such a situation may arise, whereupon it may be deemed advantageous for the court to postpone the appeal until the tribunal renders a decision. Nevertheless, it is probable that the court will adopt a restrictive stance concerning the option of a postponement, despite the fact that Arbitration Act 1996, s 69 is a facultative statute and thus differs from the mandatory provisions present within Arbitration act 1996, ss 67-68.

Enforcement of the challenged or appealed award.

After an unsuccessful challenge or appeal process pertaining to an arbitral award, the prevailing party will likely seek prompt action for the enforcement of said award. Pursuant to the provisions of the Arbitration Act of 1996, the enforcement of an arbitral award may, with the permission of the court, be executed in a manner identical to that of enforcing a court judgment or order with equivalent consequences. The provision outlined in arbitration act 1996, section 66 holds true and remains applicable irrespective of the location of the arbitration seat being situated outside the geographical bounds of England and Wales. The protocol for submitting a request to execute a decision is delineated within the Civil Procedure Rules (CPR) 62.18. Modifications to the arbitration claim form can potentially be enacted without prior notification. The party is required to furnish a pair of copies of the preliminary document. To obtain a ruling, it is imperative that it take the shape of an award.[19]

Reforms and amendments

On 3 February 2022, the 11th edition of the Commercial Court Guide of England & Wales was published, in this guide there were some amendments discussed for the arbitration practitioners. Most of these amendments were focused on deterring parties from seeking to challenge or appeal arbitration awards under ss67-69 Arbitration Act 1996 (AA 1996), namely:

challenges to awards on grounds of jurisdiction under s 67
challenges alleging irregularity under s 68
appeals on a point of law under s 69

An exceedingly limited number of applications submitted before the English courts aimed at challenging awards have attained favourable outcomes. Evidently, the success rate of appeals pertaining to points of law that were discharged pursuant to section 69 of the Arbitration Act of 1996 during the period of 2018-2019 amounted to a mere 5%. The most recent statistical data released by the Commercial Court indicates that arbitration matters constitute a significant portion of the claims brought before the court, accounting for 25% of all claims. This finding corroborates the persistent recognition of London as a prominent hub for international arbitration. [20]

Throughout its history, the Commercial Court has endeavoured to discourage the initiation of unfounded challenges to arbitration awards before the Courts. To this end, the Court has implemented mechanisms to summarily suppress claims challenging the awards on the basis of documentation, where applicable. The English Courts have consistently exhibited a pro-arbitration stance by endeavouring to maintain the conclusiveness of arbitral awards and impeding strategies aimed at impeding their enforcement. [21]

The recent amendments include:

Implementing requirements that any challenge under:

According to S67 AA 1996, the jurisdiction of a tribunal can only be invoked if there exist substantial grounds to demonstrate that the issues in question have a tangible impact on the tribunal’s substantive jurisdiction.
According to s 68 AA 1996, the possibility of lodging a claim for irregularity is limited to situations where there exist “serious grounds” to suspect that an irregularity has transpired, resulting in significant unjust outcomes, or leading to potentially consequential injustices.

It has been established that the courts possess the authority to dismiss a claim without a formal hearing. According to the directive, it would be wise for a court to dismiss challenges to sections 67-68 of the Arbitration Act 1996, when the nature of the challenge or the submitted evidence leads the court to believe that the claim is unlikely to succeed.
Expanding the scope of entitlements for respondents to pursue indemnity costs is being proposed in instances where an applicant’s challenge, pursuant to sections 67-68 of the Arbitration Act 1996, is dismissed at an early stage and the applicant proceeds to request a hearing of its claim, which is then ultimately dismissed.
It has been established that the Court possesses the authority, as stipulated in section 70 of the Arbitration Act 1996, to mandate that an applicant furnish security for costs or for the award as a requisite for proceeding with the challenge.

Proposed amendments:

Now there is a discussion among the arbitrator practitioners and business communities about changing these rules or making them better. Some people think that the reasons for questioning or changing an award should be made broader so that everyone can be treated fairly and have easy access to justice, especially those who are currently at a disadvantage because of the limited grounds allowed. Some people say that the rules for arbitration awards are good because they make sure that everything is fair, while also making sure the awards are final. Overall, if we want to change the reasons why someone can dispute an arbitration decision, we need to think about it carefully so that it fits with the goals of the Arbitration Act 1996 and doesn’t harm the business world.

The UK Government inquired the Law Commission to survey the Act, to decide whether there can be any revisions to the Act, to ensure that it is fit for reason which it proceeds to advance the UK as a leading destination for commercial arbitration[22].

Amendment in serious regularity

An avenue of potential reform has been proposed in the realm of challenging grounds, particularly in regard to cases of serious irregularity. It has been contended by certain scholars that the present test is excessively stringent, thereby posing a challenge in confirming the existence of a serious irregularity. They assert that such circumstances may impose challenges upon parties seeking to dispute an arbitration award, even in cases where a blatant violation of procedural fairness has taken place[23].

This amendment is intended to enable a party to contest an award by invoking a procedural inconsistency that has resulted in significant prejudice to the concerned party. The implementation of this measure would afford an increased level of safeguard to those parties who have experienced adverse effects due to a procedural misconduct, even if said mistake falls short of reaching the threshold of a serious irregularity.

Amendment in ground of point of law

An additional field that has recently received recommendations for reform pertains to the foundations of challenges founded on the premise of error of law. There has been an argument posited by certain scholars that the present criteria for challenging an award is extremely rigidity, and thus should be revised to allow for more leniency in challenging an award on this ground. There is an argument in favour of implementing measures aimed at ensuring the conformity of arbitration awards with legal provisions.

This proposed amendment will seek to establish a framework that will clarify the factors to be taken into consideration by the court in determining whether to intervene on the basis of a point of law, as well as provide definitive certainty with regards to the definition of a point of law of general public importance.

Conclusion

The opportunity of equitable hearing, the agency to exercise party autonomy, the privatization of the legal resolution process, the proficiency of the arbitrator, impartiality, and the finality of the decision are the core values of the arbitration. If these cannot be achieved due to some reason, then the sole purpose of arbitration vanishes. That’s why there are some grounds available as a remedy to aggrieved party, to challenge these awards, who believe that arbitration has failed to address their concerns justly. These grounds are mentioned in Arbitration act 1996. There are ongoing debates to make amendment in these grounds. Overall, the proposed amendments aim to enhance the lucidity and safeguarding of the interests of the parties who seek to contest an arbitration award within the jurisdiction of England and Wales. Nonetheless, it is yet to be determined whether these revisions will be ratified and implemented as legislation.

Bibliography

Webpages:

Jonathan Christy, “Challenging arbitration awards: recent amendments seek to limit unmeritorious challenges” < https://www.mills-reeve.com/insights/publications/challenging-arbitration-awards-recent-amendments-t> accessed on 07 May 2023.
“Arbitration Act 1996—challenging and appealing arbitral awards in the English court < https://plus.lexis.com/uk/document?crid=621c198a-de72-46d0-a807-e4ce2f9b2242&pddocfullpath=%2Fshared%2Fdocument%2Fuk%2Furn%3AcontentItem%3A592R-XRV1-DXSN-6064-00000-00&pdsourcegroupingtype=&pdcontentcomponentid=186400&pdmfid=1001073&pdisurlapi=true&federationidp=CK3THH60088&cbc=0%2C0#> Accessed on 07 May 2023
Law Commission Consultation Paper 258 “Review of the Arbitration Act 1996 < https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2023/03/Arbitration-CP2.pdf> accessed on 7 May 2023

Books:

The Commercial Court Report 2019-2020

Cases:

Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC.
Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46
P (a company incorporated in Country A) v D (a company incorporated in Country B) and others [2019] EWHC 1277 (Comm)
Minister of Finance v. IPIC [2019] EWCA Civ 2080
Hashwani v OMV Maurice Energy Ltd [2015] EWCA Civ 1171
Metro Properties Co. (F.G.C.) v. Lannon [1969] 1 QB 577, 599.

Legislation:

Arbitration Act 1996.

[1] Metro Properties Co. (F.G.C.) v. Lannon [1969] 1 QB 577, 599.

[2] Arbitration act 1996, S4(1)

[3] ibid, S 69

[4] ibid, section 67

[5] ibid, Section 82(1) and Section 30(1)

[6] Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46

[7] Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC

[8] Arbitration act 1996, Section 31

[9] ibid, section 73(1)

[10] ibid, Section 68

[11] P (a company incorporated in Country A) v D (a company incorporated in Country B) and others [2019] EWHC 1277 (Comm)

[12] Arbitration Act 1996 section 68(3)

[13] Ibid, section 71(3)

[14] Arbitration Act 1996, Section 69(7)

[15] Minister of Finance v. IPIC [2019] EWCA Civ 2080

[16] Arbitration Act 1996, S (67),(68)—challenging and appealing arbitral awards in the English court

[17] Hashwani v OMV Maurice Energy Ltd [2015] EWCA Civ 1171 (17 November 2015)

[18] Minister of Finance v. IPIC [2019] EWCA Civ 2080

[19] Arbitration Act 1996—challenging and appealing arbitral awards in the English court < https://plus.lexis.com/uk/document?crid=621c198a-de72-46d0-a807-e4ce2f9b2242&pddocfullpath=%2Fshared%2Fdocument%2Fuk%2Furn%3AcontentItem%3A592R-XRV1-DXSN-6064-00000-00&pdsourcegroupingtype=&pdcontentcomponentid=186400&pdmfid=1001073&pdisurlapi=true&federationidp=CK3THH60088&cbc=0%2C0#> Accessed on 07 May 2023

[20] The Commercial Court Report 2019-2020, para 3.1

[21] Jonathan Christy, “Challenging arbitration awards: recent amendments seek to limit unmeritorious challenges” < https://www.mills-reeve.com/insights/publications/challenging-arbitration-awards-recent-amendments-t> accessed on 07 May 2023

[22] Law Commission Consultation Paper 258 “Review of the Arbitration Act 1996” 2

[23]Michael Stocks, arbitration act review: 8 – appeal on a point of law < https://viewpoints.stevens-bolton.com/post/102hyj6/arbitration-act-review-8-appeal-on-a-point-of-law> accessed on 7^th May 2023