No court without trust

LAST month, at its 49th meeting, the Law and Justice Commission of Pakistan, chaired by the chief justice, recommended establishing an ‘International Commercial Court of Pakistan’ through a new Article 212A in the Constitution. Its stated aims — swift resolution of commercial disputes, stronger enforcement of arbitral awar­­ds, investor confidence, and Pakistan as a credible destination for capital — are exactly right, and I welcome the ambition. But as one who has spent years close to this work, I must say plainly that the court as proposed cannot fly. It will not fail for want of a fine building or good rules, but for three reasons that lie beneath it. The first is that our courts no longer command the legitimacy such a forum requires. The second is that the arbitration law it would sit above is archaic and unworkable. The third is that we have already built an overlapping forum, and it has failed.

First: a court is only as trusted as the system around it.

A court draws its power not from the statute that creates it but from the confidence of those who use it — the belief that its judges are independent and its outcomes cannot be arranged by whoever holds power outside the courtroom. That confidence has been shaken. The 26th Amend­ment of 2024 ended the convention by which the senior-most judge became chief justice and left judges a minority on the body that appoints them; the 27th Amendment of 2025 created a Federal Constitutional Court that absorbed the Supreme Court’s core jurisdiction. It is now widely percei­v­­ed, at home and abroad, that our courts have be­­come managed — and perception is the very thing on which investment turns. The foreign investor senses that absence long before a citizen does; his lawyers price it in and rank us low. He wants a neutral, swift forum; today we offer neither.

A court draws its power not from the statute that creates it but from the confidence of those who use it.

Consider who has understood this best — not the mature democracies but the Gulf monarchies. Dubai, Abu Dhabi and Qatar each walled their commercial courts off from the local order and handed the bench to eminent judges from across the common-law world. If absolute monarchies can guarantee total independence to their commercial courts, a common-law republic that will not has made a choice, and a poor one. I do not dismiss the grievance at home: our judges have not always been good, and our courts have too often failed to inspire confidence. But the cure for a court that strays is reform — accountability, transparency, openness — not capture. What has been done in the name of fixing the judiciary has set the country back many years. You cannot amend your way to credibility — least of all by another amendment, when it was amendment that did the damage.

Second: the law it would sit above is a relic.

When parties agree to arbitrate, they also choose a legal system to supervise them — the law of the seat. Choose London, Singapore or Dubai, and a modern, arbitration-friendly regime applies. Choose Pakistan, and you have chosen the Arbitration Act of 1940, a colonial statute enacted before this country existed. Under it an award is not final until a court makes it a ‘rule of the court’, which the court may modify, remit, or set aside on broad grounds; arbitration becomes litigation wrapped around it at both ends, slower and costlier than the lawsuit it was meant to replace. Nor does the international system save us: foreign awards, too, are enforced back through the same slow, unprioritised courts. And a commercial court succeeds everywhere by working hand in glove with arbitration; above a broken arbitration law, it opens onto a walled corridor.

The remedy already exists. In April 2023 the then chief justice constituted an Arbitration Law Review Committee, which I chaired; within a year we produced a complete draft — the Arbitration Act, 2024 — modelled on the UNCITRAL Model Law. On May 2, 2024, we handed it to the Federal Minister for Law and Justice, urging its enactment. Two years on, it gathers dust while we live under the Act of 1940. Meanwhile the world has moved: Rwanda modernised its arbitration law in 2008, joined the New York Convention, built the Kigali arbitration centre, and climbed near the top of Africa’s ease-of-doing-business rankings; Nigeria and Mauritius did likewise. They grasped that the foundation must be laid before anything is built upon it.

Third: we have already tried this — and it failed.

We need not imagine what happens when we build on the wrong foundation, because we have done it. In 2023 the government created the Trade Dispute Resolution Commission — well funded and well housed — and it has produced next to nothing, because its own statute chains its arbitrations to the 1940 Act and its autonomy was folded into the Ministry of Commerce. There is even grave doubt whether it is constitutional at all, for it exercises plainly judicial power as an executive-controlled body, without the independence Article 175(3) demands. The new Inter­national Mediation and Arbitration Centre is no different — signboards that have decided nothing of consequence, and the world has ignored them. Budgets, buildings and hollow announcements do not make a forum; an independent ecosystem does. An international commercial court added to this landscape would be a third empty vessel, costlier than the first two and of no use.

The order of repair

So the order of repair is everything. There are two tasks, not of equal rank: the first and fundamental is the legitimacy of the courts; the second is the arbitration law. Put legitimacy right, and the reform finally works; pass that reform, or raise a gleaming new court, into a system the world distrusts, and you will have modernised a forum no one will enter. Restore the Supreme Court to its place; disband the constitutional court a common-law country does not need; enact the Arbitration Act, 2024; and protect judicial independence rather than buying it. Neutrality and the rule of law are not the ornaments of a democracy; they are its engine, and the reason capital feels safe. Until legitimacy is regained, the International Commercial Court will not fly. Let us first get our foundations right. Let us not fool ourselves.

The writer is a former senior puisne judge of the Supreme Court of Pakistan. He is currently the Distinguished Chair in Constitutionalism & Justice and Professor of Practice at the Shaikh Ahmad Hassan School of Law, Lums, Lahore.

Published in Dawn, August 23rd, 2026