The Facilitation and Accommodation of Alternative Dispute Resolution and Arbitration in resolving Commercial Disputes in Pakistan

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ABSTRACT

With the increase in trade liberalisation, commercial disputes have also emerged. Countries are considering measures to address the issue of unprecedented trade disputes and they have come up with regulations intended to monitor the trade disputes and provide adequate settlement mechanisms. Alternate Dispute Resolution (ADR), has become the prime choice for the countries, which are involved in commercial disputes of various types. This paper presents the significance, application, and use of alternate dispute resolution for the settlement of trade disputes within Pakistan. The first chapter provides an introduction to the topic, including historical background of ADR. The scope of this particular study is limited to Pakistan only. The second chapter deals with the literature review of the topic, highlighting the judicial system and the role of judiciary in implementing the ADR mechanism within the country. The third chapter covers the qualitative methodology, followed by an analytical discussion on the legal aspects and advantages of ADR rules. A discussion on the Model Law for the Settlement of Trade Disputes and The New York Convention on Arbitral Awards, (1958) is also presented. The dissertation concludes with the fifth chapter that includes summary and recommendations.

Table of Contents

ABSTRACTii

Background of the study1

Problem Statement5

Purpose of the Study6

Rationale of the Study6

Aims and Objectives7

Scope and Significance of the Study7

Reliability and Validity8

CHAPTER 2: LITERATURE REVIEW9

Legal History of Pakistan9

Judicial System in Pakistan11

Litigation and Dispute Resolution11

Commercial Disputes in Pakistan13

Arbitration in Pakistan14

Arbitrating Commercial Disputes in Pakistan17

Alternate Dispute Resolution in Pakistan19

Problems with International Arbitration24

CHAPTER 3: METHODOLOGY32

Research Approach32

Data Collection32

Analyzing Data33

CHAPTER 4: DISCUSSION34

Pakistan's Trade Policy34

Legal aspects of ADR36

New York Convention and its Application in Pakistan38

The maturity of international commercial arbitration of foreign awards and international awards39

Current-Balance of Mediation40

Why Implement Model Law on ADR in Pakistan?41

Uniformity45

Systematization45

Conciliation Mediation as a mechanism48

Current Situation in Pakistan50

Advantages of Implementing ADR for Resolving Commercial Disputes51

CHAPTER 5: CONCLUSION59

Summary59

Judicial Reforms and ADR in Pakistan61

Recommendations62

Conclusion64

REFERENCES66

CHAPTER 1: INTRODUCTION

Background of the study

The idea of using alternative dispute resolution and mediation is not new. It has got a long history attached to it. The first examples of alternative dispute resolution were recorded in early years of ancient Roman Empire during the period 535 to 540 BC. Greeks, Indians, and First Nations of Americas also contributed towards the development of ADR mechanisms for use in economic and business duels.

It was during the Middle Ages that spread so identifying what came to be the commercial law of the former Roman civil law. For the first time, and serving as a precedent, he gave the trade fair value, derivative, however, by the exponential growth of trade relations among all the medieval villages. Different products, different currencies, and various forms of trade fair deserved study and regulation in an undivided outside the old Roman civil law.

It is believed that commercial law was born among the associations of guilds and merchants flooded medieval towns. Both buyers and sellers were interested in reaching the right price, well worth both payments. Therefore, justice was the virtue par excellence ...