Appeal and Revision in Arbitration Matters under the Pakistani Legal Regime

Abstract

The paper provides a critical, doctrinal analysis of the appellate and revisional jurisdiction of the Pakistani law to arbitration and its applications to the case. Arbitration is gaining an increasingly popular momentum within law and business environment of Pakistan as a means of fast, friendly, and less adversarial alternative to trial-by-traditional-court. The connection between arbitral practices and official legal sphere remains rather complex and even controversial, however. The principal legislation which governs the procedure of arbitration in Pakistan is the Arbitration Act 1940 which creates a limited environment of judicial interference, in particular under Section 39 and the appeals procedure. It safeguards the independence of arbitration and avoids appealability only with a small number of orders, and thus, risks letting procedural or substantive unfairness prevail. Nonetheless, under the circumstances calling in jurisdictional mistake, illegality or a substantial irregularity, the High Courts can exercise power of revisions as defined in Section 115 of the Code of Civil Procedure, 1908 (CPC). Although, in theory, these two structures are not intertwined, in reality, there is a tendency to have a clash in the interpretation and loss of time in the process.

The essay begins by describing the legal evolution of arbitration and the historical background of arbitration in the sub-continent and examining how the colonial imprints affected the present legal system. The legal basis, use and judicial construction of any appeals under the 1940 Arbitration Act and its modification to CPC are then considered. The analyses attract discrepancies in interpretation, inadequacies in procedure and challenges in the enforcement of arbitral judgments through the doctrinal explanation and the case law. This is the view of the international context that companies in Bangladesh, India and the United Kingdom use to compare their systems of arbitration. The essay concludes with a set of reform suggestions that should align Pakistan with the international best practices, promote finality in arbitration, as well as strike the proper balance between the autonomy of the arbitral tribunal and the oversight of the court.