UPDATE: Alternative Dispute Resolution in Pakistan
By Salman Ravala
Salman Ravala graduated with a Juris Doctor Law degree from Syracuse University, New York. He also obtained his M.A. in Economics from the Maxwell School of Citizenship & Public Affairs. Salman Ravala has previously worked for the Office of the Attorney General for Pakistan at the Supreme Court of Pakistan, in 2006, and as Visiting Legal Scholar for the Untied Nations Office of Legal Affairs, Trade Law Division, in Vienna, Austria, for 2007-2008. The author appreciates comments, questions, or reporting of errors and updates to the article. Contact Info: email@example.com
Published August/September 2010
Table of Contents
IV. Print Sources
V. ADR Websites
A. News Sources
IX. Term Searches
Alternative Dispute Resolution (ADR) is a vast field. In Pakistan, it is not a new concept. In fact, dispute resolution in Pakistan is, in one form or another, as old as the country itself. Parties have presented disputes to Punchaiats or Jirgas – committee of honorable elders of the community – to resolve them for years. However, this type of particular dispute resolution has been most often associated with marital and other family matters. The focus of this guide is on ADR related to commercial activities in Pakistan. Even within commercial dispute resolution, this guide focuses primarily on international investment and trade disputes, with a focus on arbitration.
This guide is intended as a basic research tool for individuals and organizations wishing to gather information on the topic within the aforementioned parameters. You will find that this guide takes you through various sources that provide a wide perspective on the topic. Many of the sources laid out may lead you to additional avenues of information, allowing you to access detailed information specific to your needs.
As indicated in the table of contents, the guide incorporates government documents and websites, legal journals and articles, commercial and specific search engines, news sources books, databases, as well as other research guides. The length of explanation under each research tool should not be an indicator of its relevance. Depending on how specific you may want to be, each source has its advantages and drawbacks. Moreover, this is only a beginning - a snapshot - of the tools that are available for your use.
Most ADR takes place through established organizations and centers; therefore a good proportion of information presented in this guide was obtained via sources found on the Internet. Information gathered via the Internet may not always be reliable and authoritative. In this guide, all information gathered through commercial search engines like Yahoo and Google was verified for accuracy. If you will be using commercial search engines, you are encouraged to verify the information you obtain by other means as well.
In any event, this beginners guide is one of the very few, if not the only one, on the subject of ADR in Pakistan. I hope you find it useful. Good luck in your research endeavors!
With close to sixty years of independence, Pakistan has had bestowed upon it numerous titles. Internationally, on the one hand, it has been called the “the most delinquent of delinquent nations” [] and on the other, “a misunderstood but still effective” [] country. Regionally, Pakistan has a “hostile relationship with most of its neighbors, and is characterized by weak and uneven economic growth, political chaos, and sectarian violence.”[] “Pakistan has oscillated between unstable democracy and benign authoritarianism.”[] However, although there has been no “matured democracy and despite its Islamic identity, unlike its neighbors, China and Iran, Pakistan has not undergone either religious authoritarianism or communism. It does very well in many areas and arguably can still emerge as a successful State.”[]
Most scholars and practitioners interested in studying international issues recognize the strategic importance of Pakistan. However, the crucial role Pakistan plays in the world today is not a new development. In the 1950s and 1960s, Pakistan was a member of two American sponsored alliances. In 1980s, Pakistan was a vital player in evicting the Soviets from Afghanistan. Today, Pakistan is an essential ally in the War on Terror. Furthermore, it is a gem for foreign investments. [] Pakistan is arguably one of the most active economies in the whole of Asia. [] Its relationship with China is seen as a potential for making money for investors, both domestic and international.[] Additionally, investors and international decision makers, not just from China, but from the rest of the world are recognizing the importance of Pakistan’s location in relation to their proposed investments in the Central Asian energy sector.[]
The text of the Constitution of Pakistan can be found on the Pakistani legislature’s website in English and Urdu, the official and national languages of Pakistan, respectively. The law firm of Zain Sheikh & Associates, a private, non-governmental entity, also hosts the Constitution. This website includes links to the text of the Constitution of Pakistan, various Presidential Orders, and amendments. This website is very useful because it lists various updates, as Pakistan’s Constitution has been amended many times, including, most recently in November 2007.[] In-print copies of the Constitution can be found in either Constitutions of the Countries of the World, A Series of Updated Tests, Constitutional Chronologies, and Annotated Bibliographies, Edited by Albert P. Blaustein and Gisbert Flanz and Published by Oceana Publications, Inc. or Constitutions of Nations, Edited by Amos Peasless and Revised by Dorothy Xydis by Martinus Nijhoff.
Although no explicit mention of ADR is mentioned in the Constitution of Pakistan, a reference to commercial and financial activities can be pinpointed in the Constitution, which may, however lead implicitly, to a view that Pakistan practices certain methods of ADR. A quick review of the Constitution reveals that articles 153-154 deal with the Council of Common Interest, article 156 deals with the National Economic Council, article 160 deals with the National Finance Commission, and article 184 of the Constitution gives rise to original jurisdiction to the Supreme Court of Pakistan in “any dispute between any two or more Governments.”[]
The website for the Pakistani Mission to the UN outlines trade organizations and treaties that Pakistan is a member of. These include, the Economic Cooperation Organization (ECO) [], South Asian Association for Regional Cooperation (SAARC) [], World Trade Organization (WTO) [], United Nations Commission on International Trade Law (UNCITRAL) [], and World Intellectual Property Organization (WIPO). []
Specifically, with regards to ADR, a researcher can use these international trade organizations that Pakistan is a member of to find detailed information on ADR in Pakistan. This is because most trade organizations have arbitration and other ADR rules. The website for Khosa Law Chambers, a Pakistani law firm, lists trade agreements, relative to ADR, that Pakistan has signed.[] As per the website, Pakistan has signed and ratified the Convention establishing the Multilateral Investment Guarantee Agency (MIGA) and the International Center for Settlement of Investment Disputes (ICSID). It has also signed the 1958 New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards.
Pakistan is a member of MIGA. MIGA is an agency of the World Bank that enhances foreign direct investment into developing countries by insuring cross-border investments. [] MIGA’s website describes the role MIGA plays in the world. Given that this was the official website of MIGA, it may contain a lot of information, which may cause difficulty in filtering precisely what a researcher is looking for. In addition, some of the information may be unnecessary for your research. Detailed information regarding ADR is also available through the MIGA website. Once on the MIGA website, use the search box on the top right hand corner of the MIGA website and type the term, “Alternative Dispute Resolution.” The first link discusses ADR with respect to MIGA. One can also arrive at this link by clicking on the “Guarantees” tab on the MIGA website. Once you click on “Guarantees”, a new set of topics will open and from that new list of topics, you can click on “Dispute Resolution.” ADR is an important component of any international trade organization and because MIGA insures and promotes investments into developing countries, it also provides “an umbrella of deterrence against government actions that could disrupt insured investments and helps resolve potential disputes” [] to enhance investor confidence. To promote its goal, in 1996, MIGA began offering dispute resolution services to help governments and foreign investors find creative solutions to their disagreements. Pakistan is a developing country that has an influx of investments. Given that it has signed and ratified the convention establishing MIGA, it has agreed to all its terms including those pertaining to ADR. As per the website of the U.S. Department of Commerce, Pakistan became a member to MIGA in April 1992. []
Pakistan is a member of ICSID. ICSID is also an institution of the World Bank that “provides facilities for conciliation and arbitration of international investment disputes.” [] Once again, given that this is the official website for ICSID, you may find this website with a large volume of information, some of which may be unnecessary and hard to filter through. Thus, a general overview of ICSID may be necessary. For this, you can use Wikipedia. Simply type in “ICSID” in the search box at the Wikipedia website.
One can find general information on ICSID by clicking on the “About ICSID” link on the ICSID website. ICSID was formed via the ICSID Convention, also known as the Washington Convention. ICSID is a “multilateral treaty formulated by the Executive Directors of the International Bank for Reconstruction and Development (the World Bank). It was opened for signature on March 18, 1965 and entered into force on October 14, 1966.”[] Today, ICSID is considered to be a leading international arbitration institution. Comprehensive information regarding ADR, including, most specifically about arbitration, is available on the ICSID website as ICSID is an institution, whose primary purpose is to resolve international investment disputes by using ADR methods.
As stated above, foreign direct investment in Pakistan is fairly large. Given that Pakistan has signed and ratified the Washington Convention establishing ICSID, it has agreed to all its terms. To research detailed information pertaining to Pakistan and ICSID, click on the “Member States” link on the left hand side pane visible on the ICSID homepage. Then click on “List of Contracting States” and the webpage opens a link that houses a portable data file (PDF) version list of contracting states, detailing the date of signature and ratification. Pakistan was one of the first countries to sign the Washington Convention on July 6, 1965. It deposited its ratification of the Convention on September 15, 1966 and the Convention went into force one month after, in October 1996. A direct link to the particular ICSID webpage is here.
Pakistan has also signed and ratified the New York Convention. The New York Convention is also known as the New York Convention of 1958 and the Convention for the Recognition and Enforcement of Foreign Arbitral Awards. The official website for the United Nations Commission on International Trade Law (UNCITRAL) houses the full text of the New York Convention. To find out more about UNCITRAL, you can search the UNCITRAL website for general information about the organization. You can visit the UNCITRAL website and then click “About UNCITRAL” to find detailed information. The website has a large volume of information; nonetheless, it is organized very well.
UNCITRAL is a Commission of the UN established by the General Assembly on 17 December 1966 by Resolution 2205 (XXI). Thus, although the New York Convention was adopted in 1958, the Commission’s essential mandate is to promote the Convention further. Furthermore, UNCITRAL serves as the International Trade Law Branch of the Office of Legal Affairs of the UN. Hence, UNCITRAL, under the umbrella of the UN, is the biggest organizational body to prepare rules relating to ADR, namely arbitration and conciliation. To find this information, you can visit the UN website and then click on link titled “International Law” on the top of the website. Once on the international law webpage, you can either click directly on the “Commission on International Trade Law(UNCITRAL)” link or click on the link titled, “Office of Legal Affairs.” Once on the Office of Legal Affairs webpage, you can click on the link titled “ITLD – International Trade Law Division”, which leads you to verify that UNCITRAL is generally the International Trade Law Division of the United Nations. Clicking on the “Commission on International Trade Law(UNCITRAL)” link, will of course, take you to the UNCITRAL homepage.
To confirm the involvement of the General Assembly in establishing UNCITRAL, you can quickly search for either Resolution 2205 on the Internet or visit the UN website. Once on the UN website, you can click on the preferred language. Then you can click on the “Documents, Maps” link on the top pane of the website. This link will direct you to the document center of the United Nations. Once at the document center, you can click on “Resolutions” as you will be confirming the source for UNCITRAL per Resolution 2205, as indicated on the UNCITRAL website. After you have arrived on the resolutions link, you can then simply click on the year “21st-1966” link. You will know to click on that specific link because of the fact that Resolution 2205 came into effect in 1966, as indicated on the UNICTRAL website. After clicking on the link, “21st-1966” you can simply look for Resolution 2205. This will confirm the facts on the UNCITRAL website as accurate.
Pakistan has signed and ratified the New York Convention. The specific dates are available on the UNCITRAL website. Once on the UNCITRAL website, you can click on “UNCITRAL Texts & Status” link and then on the “International Commercial Arbitration & Conciliation” link. The International Commercial Arbitration & Conciliation link brings forth various documents including the New York Convention. You can click on the link for the New York Convention, titled, “1958 - Convention on the Recognition and Enforcement of Foreign Arbitral Awards - the "New York" Convention” and then click on the “Status” link. As the document indicates, Pakistan was once again, one of the earliest signatory members to an ADR related document, here the New York Convention. It signed the Convention on December 30, 1958 and ratified it on July 14, 2005, bringing it into force three months later in October 2005.[]
Although the New York Convention is, just one treaty related to ADR that Pakistan has signed and ratified, there are various other ADR related Conventions by the UN that Pakistan has overlooked in implementing. These include, but are not limited to, 1) Convention on the Limited Period in International Sales of Goods; 2) UN Convention on Contracts for the International Sale of Goods (CISG); 3) UN Convention on Independent Guarantee and Stand-by-Letters of Credit; 4) UN Convention on International Bills of Exchange and International Promissory Notes; 5) UN Convention on Assignment of Receivables in International Trade; 6) UN Convention on Carriage of Goods by Sea. You can access the color-coded database maintained by LegaCarta, the International Trade Centre’s database to gather this information. A link to the database is available on the UNCITRAL website under the New York Convention Page. You can access the New York Convention page from the directions given above under the New York Convention Section. Once inside the color-coded database, you can pick Pakistan, or any other country being researched, and the database will show which UN Convention related to ADR the specific country has signed and ratified.
Searching for treaties or Conventions at an international organization level can prove to be tedious and lengthy. Given that most of the treaties or Conventions at an international level will be popular, a simple search on a commercial search engine or Wikipedia with the generic name of the document would give you good background information. However, as a note of caution, you are urged to double check information by verifying it with official websites of organizations promoting a certain treaty or Convention. With regards to the UN, fortunately, it has developed a special research engine that can assist with this task. Information regarding ADR can be found on various sections of the research engine, but most precisely on the International Law section. You can access this link, from start, by logging onto the UN website and then clicking on “International Law.” Once on the International Law section of the website, you can then click on “Research Guide” on the bottom right hand side of the webpage.
As discussed above, laws related to ADR are implicitly mentioned in the Constitution of Pakistan. Explicit mention of ADR methods and mechanisms is made in the following domestic laws of Pakistan:
First, the Small Claims and Minor Offences Courts Ordinance of 2002 can be found on the website of a Pakistani law firm, Jamil & Jamil, Barristers at Law. Once on the website, click on the “Publications” tab on the left hand side of the website and then click on Small Claims and Minor Offences Court Ordinance of 2002 from the list.
The Small Claims and Minor Offences Court Ordinance is a law intended to establish a court of Small Claims and Minor Offences, where the value of the small claims suit is less than Rs.100,000 ($1600) and the punishment for minor offences is less than three years.[] The purpose of the law is to “provide legal cover to amicable modes of settling disputes between parties…easily and expeditiously.”[] You can quickly read the law on the website indicated above, to see that this law encourages “amicable settlement” which includes arbitration, mediation, and conciliation – all forms of ADR.
Second, the SBNP Local Government Ordinance of 2001 (SBNP – LGO), can be found on the website of the National Reconstruction Bureau of Pakistan (NRB). The main page of the NRB website has links to the LGO in both English and Urdu, the official and national languages of Pakistan, respectively.
Sections 102 – 106 under Chapter XI of the Ordinance encourage “amicable settlement of disputes…through mediation, conciliation, and arbitration.”[] Given that this is provincial law (equivalent of state law in the U.S.); it goes to show that Pakistan has resolved to the use ADR methods, even at a local level.
Third, the Code of Criminal Procedure of 1898 can be found on the aforementioned website of Jamil & Jamil, Barristers at Law. Once on the website, click on the “Publications” tab on the left hand side of the website and then click on the Code of Criminal Procedure, 1898, link from the list. There is no mention of ADR tools or mechanisms in CCP 1898. The summary trial provisions in Chapter XXII only require the expeditious resolution of a dispute.
Lastly, the Arbitration Act of 1940, an Act passed for all of British Indian before Pakistan’s independence, continues to apply to Pakistan today. It can be on the aforementioned website of Jamil & Jamil, Barristers at Law. Once on the website, click on the “Publications” tab on the left hand side of the website and then click on the Arbitration Act of 1940 link. The Act provides for three classes of arbitration: 1) arbitration without court intervention (Chapter II, sections 3-19); 2) arbitration where no suit is pending, (but through court) (Chapter III, section 20); and 3) arbitration in suits (through court) (Chapter IV, sections 21-25).
Print sources provide the most comprehensive information on a subject matter. Treatises provide the most comprehensive A – Z kind of information and books usually discuss all relevant matters pertaining to the subject in one collection. Articles are also a good source because they are published and therefore provide both current and well-researched information. Below are some treatises, books, and articles. You may also find useful in searching for print sources, an online catalog, WorldCat, which houses over 49 million records representing books, journals, dissertations, audio-visual materials, and manuscripts in repositories worldwide.[]
Titles for treatises on ADR can be found using the Internet or a local library. If you use a local library, give preference to a law library. Commercial ADR is fairly new in Pakistan. Consequentially, there exist only a limited number of treatises and books on the topic. The following is a selective list of treatises and books that can help you get started.
· A History of Alternative Dispute
Resolution: The Story of Political, Social, and Cultural Movement, Jerome T.
Barrett and Joseph Barrett, Jossey-Bass, Aug. 2004.
This book traces the evolution of the ADR process and offers an overview of the precursors to ADR. In addition, the book offers the historical context for the use of ADR in the arenas of diplomacy and business.
· Dispute Resolution in Asia,
Michael Pryles, Kluwer Law International, Oct. 2002.
This book examines dispute resolution in ten countries in Asia and provides a regional approach to the field of ADR.
· Alternative Dispute Resolution: A Developing World Perspective, Albert Fiadjoe, Routledge Cavendish, Oct. 2004.
· International Alternative Dispute Resolution: Past, Present and Future - The Permanent Court of Arbitration Centennial Papers, International Bureau of the Permanent Court of Arbitration Staff, Kluwer Law International, Nov. 2000.
Although the number of treatises and books on ADR in Pakistan is limited, there is no shortage of articles written about ADR in Pakistan. Scholarly articles can be best found as “Law Review” or “Journal” articles. Scholarly articles are a good secondary source, which you must always consult. They are often well researched and also provide citations to other important sources in the field. Research for articles can be done either at a local law library, in the “Law Review” or “Journal” section, or on computerized legal research databases like WestLaw and LexisNexis. The following is a selective list of articles that can help you get started.
· Himpurna and Hub: International Arbitration in Developing Countries, Cornell, Peter and Handley, Arwen, Mealey's International Arbitration Report 39, 2000.
· Commentary on the Hubco Judgment, Nudrat B. Majeed, 16 Arb. Int'l 431, 2000.
· Investor-State Disputes and International Law: From the Far Side, Nudrat B. Majeed, 98 Am Socy Intl L Proceedings 30, 31, 2004.
· The Interaction between Shariah and International Arbitration, Almas Khan, Chicago J. Intl L, 2006.
· Good Faith and Due Process: Lessons from the Shari’ah, Nudrat B. Majeed, 20 ARB. INT’L 97, 98, 2004.
The Government of Pakistan website, like the website of any national government, will host volumes of information. General information on how domestic legislation is enacted and what ministry is responsible for ADR in the country can also be found here.
B. Parliament of Pakistan
The legislative bodies in Pakistan make all the laws relating to ADR. Therefore, you might find it useful to consult Parliament’s websites.
Article 50 of the Constitution of Pakistan stipulates a Majlis-e-Shoora (Parliament) of Pakistan consisting of the President and two Houses to be known respectively as the National Assembly and the Senate. The Constitution provides for a Parliamentary form of Government with a bicameral legislature.
The Law & Justice Commission of Pakistan is an organization of the federal government with the primary function of reform of statues and law, including their modernization, unification, and codification. The organization sponsored an event, the National Judicial Conference, which addressed issues relating to ADR. The Commission website has information on the conference as well.
The AAA is an association that provides administrative services related to ADR. AAA provides its services internationally via its ICDR division. The website’s international section has information on both all forms of international ADR methods. This website hosts various articles, research data, rules and other relevant information
The ABA is an association of members either already licensed to practice law in the United States or individuals at law schools pursuing a career in law. The AAA has a section for dispute resolution. The website has a wealth of information related to ADR including ADR related publications, resources, and a list of upcoming events.
GAMA is an association dedicated to helping people find mediators and arbitrators. The website has e-directories through which an individual or business can search for mediators and arbitrators by years of ADR experience, education, credentials, subject matter expertise, associations, geographic location, video conferencing compatibility and hourly rate.
The IBA is an association of law societies, bar associations and individual lawyers engaged in international practice. It has a section for dispute resolution. The website has many resources including articles, rules, calendar of events, and other relevant items related to ADR.
ICCA is an organization that promotes international arbitration and other forms of ADR. This is an excellent source on arbitration as it provides you with a directory of arbitration websites and other information related to arbitration available on the Internet. This website also has a separate section for specific countries. Thus, information on arbitration laws and arbitration centers in Pakistan can easily be accessed through this website as well. Once on the website, you can click on “Directory of Arbitration Websites” from the menu.
JAMS provides ADR services at an international level. The website includes ADR tips, articles, and other relevant resources.
ADR Pakistan Alliance is a newly formed web-based association of ADR professionals in Pakistan. It provides ADR experts to businesses, law firms, international organizations, NGOs, and others for training and dispute resolution purposes. As of the date of this research guide, this website looks fairly new, as some of the links on the website are non-functional. However, a researcher interested in ADR in Pakistan can contact this organization for more information.
This global collection categorizes ADR blogs alphabetically, either by country, or by category, as well as offering resources about blogging and ADR.
ICC Pakistan is a consultative body to senior policy makers and provides guidelines and information, which help to facilitate legislation allowing for the development of a conducive and enabling environment for direct investments and international trade within Pakistan.
A list of law firms in Pakistan practicing ADR is quickly availably by searching for the term, “law firms practicing ADR in Pakistan” on a commercial search engine such as Yahoo.com or Google.com. It is recommended that you conduct your own search as law firms may change names or locations. Websites, which allow you to find law firms, include Legal 500, HG-Org Firms, and Iba-net. Another good source to locate such firms would be the Martindale-Hubbell Law Directory.
Given that commercial ADR is a newly developing field in Pakistan, this research guide is the first, most comprehensive guide on the topic. However, if you can find other guides on the topic, it will be useful to consult them for cross-referencing to look for additional sources not included in this guide. Below is a small list of research guides that you may find helpful.
There are various ways to acquire current and archived news about the development of ADR in Pakistan. By performing a search on commercial search engines like Yahoo.com or Google.com, you will find hundreds of results. However, for credible news, it is always better to consult specific news agencies that have gained a reputation for accurate reporting. Below is a list of news sources around the world that you may find useful. If you have access to WestLaw, LexisNexis, or other computerized legal research databases, you can also use the News feature on them. In addition, Google.com has an excellent feature called News-Alert where you can type the subject matter, here, “ADR in Pakistan”, and Google.com will automatically send you any news on the specified topic to your email address.
· Joint ADR Committee, Dawn News, April 2006
Many other articles are available by searching Pakistani news paper websites. To see results, log on to a Pakistani news paper website and search using the term, “ADR in Pakistan” or “Alternative Dispute Resolution.” Dawn News, for example, has this feature. []
In the course of research, you may encounter terms or acronyms that you are not familiar with or need basic knowledge of in order to understand a document. For a brief explanation of such terms, you may consult the sources below.
[] Pakistan, China to set up free trade area, China Business Weekly, available here (last visited, July 07, 2010) (The number of foreign companies now operating and investing in Pakistan is over five hundred).
[] Investing in Pakistan, Fin. Times, available here (June 01, 2005).
[] See Pakistan: A Geo-political Crux, Power and Interest News Report, available here (last visited, July 07, 2010). (Both Tajikistan and Uzbekistan lack sea access and Pakistani harbors on the Indian Ocean will likely serve as outlets to the energy routes.).
[] NOTE to researcher: Given that the Constitution of Pakistan has been amended numerous times, including as recently as November 2007, it is best to use commercial search engines like Yahoo or Google to find the current, most up-to-date Constitution, with all the amendments. It is strongly urged that you refrain from using professional websites like the University of Richmond Constitution Finder (http://confinder.richmond.edu/) as they may not have the most up-to-date revisions of the Constitution of Pakistan.
[] This website was hosted by a Pakistani law-firm at http://www.khosas.com/
[] Multilateral Investment Guarantee Agency, About MIGA, available here (last visited, July 07, 2010).
[] Multilateral Investment Guarantee Agency, Dispute Resolution, available here (last visited, July 07, 2010).
[] U.S. Dept. of Commerce, Pakistan Investment Climate Statement, available here (last visited, Mar. 23, 2008).
[] International Centre for Settlement of Investment Disputes (ICSID), available here (last visited, July 07, 2010).
[] U.N. Commission on International Trade Law, Status, 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, available here (last visited, July 07, 2010).
[] Government Asked to Enforce Small Claims Ordinance, available here. (May 30, 2004).
[] A * next to the newspaper name indicates that the news source is based in Pakistan. A complete list of Pakistani newspapers can also be found here.