The author was a member of the Working Group drafting the PCCO 2021.[1]
- Commercial Courts Around the World
In 2017, the Lord Chief Justice of England and Wales, Lord Thomas addressing the National Judges College in Beijing, China said,
“A Commercial Court must have as its objectives the ability to deliver justice quickly and relatively inexpensively. Its processes must be simple and flexible. The quality of its judgments must be high. It needs to apply the law in a way that is certain, fair, and predictable. It must ensure that the law keeps pace with market developments. It must maintain the strength and vitality of the legal framework.”[2]
Lord Thomas made the statement at a time when commercial courts were mushrooming in many of the active trading countries. In a bid to establish themselves as commercial hubs for business and trade disputes and in response to international commercial arbitration suffering from the malaise of conventional commercial litigation (i.e. delays and costs), several countries have set up new commercial courts promoting new perspectives on the adjudication of commercial disputes. Cases range from minor disputes in monetary terms to major disputes with several billion dollars at stake to disputes involving issues of geopolitical importance.[3]
The new millennium has opened a whole new market for dispute resolution with modern commercial courts employing state-of-the-art technology. Some of the new commercial courts set up in just the last ten years include the Dubai International Financial Centre Courts in 2004, Qatar International Court in 2009, Abu Dhabi Global Market Courts in 2015, Singapore International Commercial Court in 2015, Astana International Financial Centre Court in 2018, Chamber for International Commercial Disputes Frankfurt/Main in 2018, International Chamber, Paris Tribunal de Commerce/Cour d’appel in 2018, China International Commercial Court in 2018 and Netherlands Commercial Court in 2019. In addition, some jurisdictions, such as the Luxembourg District Court, have developed arrangements providing for specialised resolution of commercial cases in their civil courts.
The concept of dedicated commercial courts is not a new one. Le Tribunal de Commerce de Paris is the oldest commercial court in the West having been established in its present form in 1792. Its origin can be traced back to an edict issued by Charles IX in 1563. Around the same time, in 1774 in America, the second-oldest court, the County Courthouse of New Jersey had been hearing commercial disputes arising from the Boston Tea Party which then led to the American Revolutionary War of 1775. The first dedicated commercial court, though, was set up almost 200 years later, in 1995, as the Commercial Division of the New York State Supreme Court.
However, the prototype of the modern commercial court came from England in 1895 and in the most unlikely of ways. It all began with the dubious appointment of a certain Justice Lawrance – popularly known as Long Lawrance for his height.[4] Lawrance J was required, in the commercial case of Rose v Bank of Australasia [1894] A.C. 687, to rule on an Aberdeen shipowner’s claim for general average contribution from cargo-owners based on a complicated adjustment by adjusters in the City of London. According to a notable lawyer of the time,
“Lawrance knew as much about the principles of general average as does a Hindoo about figure skating.”
A senior judge, Mackinnon L.J described him in the following words:
“…a stupid man, a very ill-equipped lawyer and a bad judge. He was not the worst judge I have appeared before: that distinction I would assign to Mr. Justice Ridley; Ridley had much better brains than Lawrance but he had a perverse instinct for unfairness that Lawrance could never approach.”
The statement of claim before Lawrance J was a mere 36 lines in length and the reply and defence to counterclaim just over one page. He listened to the arguments with mild interest, reserved judgment and forgot all about the case till he was reminded to give judgment almost a year later. The case turned out to be the last straw for the merchants of the City of London who had already been disillusioned by the delays, technicalities and cost of commercial litigation in court. A revolt ensued, giving birth to the London Commercial Court in 1895.
- Commercial Courts in Pakistan
It is difficult to say whether it has been the Pakistani judiciary’s good fortune to not have had a Long Lawrence necessitating the need for specialized commercial courts till now, or whether it has been its misfortune. Perhaps if there had been an uninterested and ill-equipped judge hearing commercial cases, our commercial courts would have been established much sooner.
Pakistan has never had dedicated commercial courts till now. The closest it came to setting up commercial courts was under the Import and Export Control Act, 1950 which established a quasi-judicial criminal court in 1980 following amendments to the 1950 Act to deal specifically with cases coming from the Export Promotion Bureau. Although the forum was called a ‘commercial court’, it was more of a quasi-judicial tribunal rather than a judicial court of law. The composition of judges at the forum included a civil servant, a businessperson/executive connected to the Federation of Pakistan Chambers of Commerce and Industry and a retired judge of the Sessions or High Court. Its procedure was governed by the Code of Criminal Procedure, 1898 rather than the Code of Civil Procedure, 1908. Two such courts had been set up; one in Karachi (servicing Sindh and Balochistan) and one in Lahore (servicing Punjab and Khyber Pakhtunkhwa). Tragically, even for a quasi-judicial tribunal, its performance has been less than laudatory managing a meagre 2 to 3 cases a year at the cost of PKR 25,799,000 to the exchequer.[5]
Therefore, when the Lahore High Court in collaboration with the Punjab Government and the World Bank announced the setting up of commercial courts, it was hailed as a step in the right direction by the legal, business and overseas Pakistani community, given the volume of commercial disputes getting thrown in with all other civil cases and beginning their snail’s crawl towards resolution. Motivation had already been building up, spurred on by the growing number of overseas Pakistanis contributing to the national economy through financial investments and active dealing in the ever-booming property market. The Honourable Chief Justice of the Lahore High Court, Justice Qasim Khan, aided by proactive judges like the Honourable Justice Jawad Hassan, led an initiative designating independent judges of the civil court to hear commercial disputes at the Overseas Pakistanis Cell which had been set up by the previous Honourable Chief Justice, Justice Sardar Shamim Khan at the Lahore High Court and in various districts of Punjab to address matters related to overseas Pakistanis.[6]
- Lahore High Court Chief Justice Authorizing Commercial Courts in the Punjab Districts
The success of the Overseas Pakistanis Cell was followed by a notification[7] issued by the Chief Justice in April 2020 establishing Commercial Courts in the districts of Punjab and nominating judges to exclusively hear and adjudicate cases of a commercial nature as defined by the Lahore High Court Rules and Orders.[8] The notification kicked off an intensive round of specialist training workshops on national and commercial law and practice. Simultaneously, a Working Group had been formed headed by two High Court judges, Justice Shahid Karim and Justice Jawad Hassan, comprising members of the legal community, the Punjab Government and the World Bank. The result was the Punjab Commercial Courts Ordinance 2021 signed on 12th April, 2021 by the Governor of Punjab, Mr. Muhammad Sarwar, in the gardens of Governor House, Lahore at sunset, to the sound of the sonorous call to prayer and under the light of the new moon of Ramadan 1442 H. It was, indeed, an auspicious entry into a new frontier.
- Overview of the Punjab Commercial Courts Ordinance 2021
The constitutional and procedural legal system in Pakistan is well suited to accommodate specialized commercial courts with various constitutional safeguards and procedural provisions lending legitimacy to such ventures. This was reinforced ahead of the arrival of the Ordinance by the decision of the Lahore High Court in Pizza Hut v Multan Development Authority and others (2021). In this case, which addressed the question of whether the writ jurisdiction of the High Court under Article 199 of the Constitution was maintainable in circumstances where proceedings had been pending before a court of first instance which had jurisdiction, the learned judge, Justice Jawad Hassan, whilst dismissing the petition for failing to show that relief sought in the court of first instance i.e. the Commercial Court was not adequate and efficacious, stressed upon the following:
“28. Undoubtedly freedom of trade, business and commerce is a fundamental right guaranteed under Article 18 of the Constitution which states that every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business. One of the basic purposes behind provision of this fundamental right is certainly to advance culture of socio-economic progress and to protect and promote business and trade activities and, at the same time, to encourage simplification of the process of establishing and carrying out new business ventures throughout the country because activities of business and trade create opportunities for the masses around and provide job options, financial stability, and progress in the area.
29. Since the Pizza Hut is an international chain and entered into lease agreement with WASA, it is the duty of the Courts in Pakistan to see the rights of the parties and to protect their interest to build confidence of investors in Pakistan but at the same time the interest of government functionaries has also to be examined regarding financial interest of the Government. The learned Civil/Commercial Court is, therefore, directed to decide the case expeditiously but not later than 60 days from the receipt of copy of this judgment in accordance with law.”[9]
The above decision set the stage for the arrival of the Ordinance, signaling a decisive nod of encouragement to the international investment and legal community with regard to a pro-commerce judicial climate.
The Ordinance provides, for the whole of the province of Punjab,
“…a legal regime for early resolution of commercial disputes and expeditious disposal of commercial litigation of specified value.”
A commercial dispute is defined as,
“…any dispute, claim or counterclaim arising out of a contractual dispute where the value of the claim or counterclaim is five hundred thousand rupees or more, or such other value as the Government may notify, related to or connected with any transaction of trade, business or commerce excluding sale or purchase of immovable property:
i. between the domestic companies; or
ii. between a domestic company and a foreign company or a firm; or
iii. between the firms; or
iv. between a firm and domestic or foreign company; or
v. between a domestic company, foreign company or a firm and a private person.”[10]
The distinguishing features of the Ordinance, which has 23 sections in total, include the following:
(i) Setting up of dedicated commercial courts and appellate forums in the districts of Punjab which will have exclusive jurisdiction to try commercial disputes and dispose of them within a period of 180 days from the date of filing of a suit;
(ii) Provision for e-filing of written and oral pleadings and recording of evidence. Commercial courts will be the first courts to formally allow arrangements to deal with crises like the current global COVID-19 pandemic without obstructing the judicial process;
(iii) Short shrift given to adjournments which plague the efficiency of courts in Pakistan and are the most common dilatory tactic employed by obstructive advocates. Section 11 of the Ordinance allows two adjournments “for a specific purpose” and a third, final adjournment under exceptional circumstances and, that too, for only one week subject to payment of costs awarded at the discretion of the judge;
(iv) Apportioning of costs under Section 12. Section 12(1)(c) affords an opportunity to argue for wasted costs against a party resorting to dilatory tactics, not limited to unnecessary adjournments;
(v) Disposal of appeals within 120 days from the date of filing of an appeal; and
(vi) Mandatory court-ordered alternative dispute resolution (ADR) under the provisions of Order IX-B of the Code of Civil Procedure, 1908.
These are welcome developments not least because they are long overdue, and not least because they force the wider judicial lawmaking and law-interpreting process to step up and keep pace with the demands of a rapidly moving global commercial order, but because commercial courts by virtue of the subject matter they deal with have a wider impact on society as compared to other types of disputes perhaps. Therefore, commercial court judges become even greater agents for social and economic change than one appreciates. This takes on greater significance when seen, as mentioned above, in commercial disputes that involve sensitive and complex geopolitical/geo-economic issues and questions of national concern.
Now is the time to scrutinize the Ordinance to see if it lives up to the promises it makes in the Preamble that “commerce, trade and business matters require special expertise for their expeditious disposal” and that “commercial courts shall facilitate investment in the country and provide speedy justice.”
The configuration of the Ordinance, not the concept of Commercial Courts, comes with some caveats which should be corrected before the Ordinance acquires the status of a statute. First and foremost, the “specified value” of commercial cases mentioned in the Preamble and again in section 18 of the Ordinance (in relation to the power of the High Court to issue directions) has not been defined. The term “specified value” has also been used in the 2015 Indian Commercial Courts Act as well as in its 2018 Amendment. Section 2(1)(i) of the Indian Commercial Courts Act 2015 defines specified value in relation to a commercial dispute as “the value of the subject-matter in respect of a suit as determined in accordance with section 12 (which shall not be less than three lac rupees)[11] or such higher value, as may be notified by the Central Government.” Section 12 of the 2015 Act elaborates on the various methods of quantification of “specified value” depending on whether recovery is of money, movable property, immovable property, or any other intangible right. This crucial computation to determine what constitutes “specified value” is missing in the Ordinance and will be easy fodder for an advocate looking for deleterious and time-wasting tactics.
A bigger concern is the appellate forum envisaged by the Ordinance. This is dealt with in section 15 on Commercial Appellate Tribunals. This is a cumbersome procedure which falls neither at the District Court level nor at the High Court level. It is a tribunal hanging somewhere in between and could pose similar handicaps to the tribunal set up years ago under the Import Export Act 1950, rendering it largely ineffective. Section 15(2) of the Ordinance states that the “tribunal shall consist of a Chairperson and two members who are, or have been, or are qualified for appointment as, a Judge of the High Court, to be appointed in consultation with the Chief Justice.” It would allow a district judge not yet been elevated to the High Court, as well as a retired judge, to form the panel of members of the tribunal. It is doubtful that it will sit comfortably with the sitting judges to be bypassed for an appointment in favour of a retired judge. Furthermore, such a tribunal would bypass the High Court altogether while decisions rendered by it would be challenged directly in the Supreme Court which goes against the civil procedure code and practice.
Another concern is the definition of a commercial dispute which is somewhat opaque in its ambit by “excluding sale or purchase of immovable property.” This definition needs refinement since much of the discourse on the rule of law and economic development revolves around two critical factors:
(i) enjoyment of property rights; and
(ii) enforcement of contracts.[12]
Indeed, there are social philosophers and economists who argue that the rule of law in a country can precede or operate independently of democracy if the following two elements in a legal system are strong:
(i) effective courts; and
(ii) tight commercial law.
A legal system in a developing country dominated by legislative action will neither inspire confidence nor establish stability required by modern governance and investment. If courts are efficient and commercial codes are effective to secure property rights and enforce contracts, then the rule of law and economic development have a chance to prosper. Commercial law draws for its sustenance on all the great streams of law that together make up the corpus of English jurisprudence, with the law of contract as its core, while equity acts now as its handmaiden, now as the keeper of its conscience.[13] Contract law is foundational to commercial law simply because contracts are essential to commerce. Without the certainty or at least the security provided by a contract, modern day commerce will not be possible.[14]
- Punjab Commercial Courts at a Crossroads of Legal Cultures
The Lahore High Court has seized what is the chance of a legal lifetime in setting up specialized, state-of-the-art courts underpinned by an internationally respected commercial code. A feature that puts the Ordinance and commercial courts in Pakistan in good international stead is the fact that whilst the prominent new international commercial courts do not follow a single definition or model, many of them are strongly influenced by the common law tradition.[15] Pakistan’s legal system has also evolved out of the English common law tradition, which can provide a competitive advantage amongst international commercial dispute resolution fora. Common law, both in terms of substance and procedure, is widely recognised in international business, in part perhaps because the common denominator for international trade from Southeast Asia to Latin America (one end of the globe to the other) is the English language. It is a tried and trusted system, known for its adaptability to the needs of modern commerce. Furthermore, there is always a need for a common denominator, since conducting trade across different legal systems increases the transaction costs of business. A lot of resources are spent on understanding compliance with national laws from the start to the end (i.e. enforcement of judgments). Differences between systems need to be bridged as unfamiliarity with local legal processes increases commercial risk.
This is not to diminish the contribution of the civil (i.e. inquisitorial) court system, and the civil law itself, to international commerce. The Punjab commercial court judges should take note of this in developing commercial jurisprudence. One of the unique features of international commercial law is that it allows for harmonization and the picking and choosing of the best features of all systems in a way that other areas of law may not. A 2018 study commissioned by the European Parliament’s Committee on Legal Affairs introduced the idea of a “European Commercial Court” to create a centre for international commercial disputes similar to the Singapore International Commercial Court. In mainland Europe, Brexit has been seen as an opportunity to attract legal business either away from London or as an alternate complement to London. In each situation, the focus is on building a truly international system of dispute resolution that strives for convergence.
It is universally acknowledged that the purpose of the modern commercial court is to provide an efficient and credible means of commercial dispute resolution, particularly in relation to international disputes, with the aim of attracting inward investment. For Pakistan, this extends to providing an efficient and transparent adjudication environment to attract overseas Pakistanis to invest in their motherland despite the many challenges and blockages in the system. The Pakistani diaspora around the world amounts to over 11 million people, which is 3 times the populations of Singapore, Denmark and Finland and equal to those of Belgium and Tunisia. This diaspora is a national asset that should be recognised, appreciated and catered for in the development of commercial courts, rule of law and economic development.
The Chief Justice of Singapore, Justice Sundaresh Menon has noted the following:
“… it is also in the sphere of commerce that the dualism between an international outlook and a domestic rootedness is perhaps at its most visceral. How we choose to structure and propagate our laws of commerce can have an impact on the calculus of economic actors and, consequently, on the behaviour of the markets they transact in.”[16]
Many countries worldwide have recognised the importance of the role of commercial courts in laying strong foundations for a stable economy. France is an example of a country which has changed its law with a view to obtain competitive advantage. The section of the French Civil Code on the law of contract was comprehensively amended in 2016 with the stated aim of rendering French contract law more accessible, predictable, internationally influential and commercially attractive.
The purpose of setting up new commercial courts – which are expensive to establish and maintain – goes beyond competition in work related to international commercial disputes. These courts are seen as essential building blocks in the ecosystem of a global commercial and financial centre as observed by Singapore’s Chief Justice Sundaresh Menon in the following words:
“Arbitration, by its very nature, cannot provide a complete solution to propel the vessel of global commerce forward. Arbitration was conceived as an ad hoc, consensual, convenient, and confidential method of resolving disputes. It was not designed to provide an authoritative and legitimate superstructure to facilitate global commerce. It cannot, on its own, adequately address such things as the harmonisation of substantive commercial laws, practices and ethics.”[17]
- Parallel Global Developments
Internationally, the London Commercial Court is heralded as the model for new international commercial courts. Justice Long Lawrence, albeit infamous, became immortalized by being in the right place at the right time. He was the goose, but he did not lay the golden eggs, only happened to be sitting on them. England already had centuries of established commercial jurisprudence; the setting up of dedicated commercial courts consolidated the vast body of jurisprudence under one roof. This is not to say that England has, by any means, been at the forefront of commercial courts. The London Commercial Court went through its own dry spell after World War II and had a slow recovery in the ensuing decades, showing that a commercial court was as good as the market it sought to preserve. Even in doing that, it needed to be complemented by a strong commercial law and active arbitration mechanism allowing for speedy alternatives to litigation. It was only with the Civil Procedure Reforms of Lord Woolf in 1996 that fresh life had been breathed into a cluttered and slow system. Several other developments alongside also directed the course of commercial courts’ efficacy, including some of the following:
(i) Standing International Forum of Commercial Courts (SIFoCC)
Set up in 2016, this is an international forum for commercial courts. Judges of dedicated commercial courts or courts dealing with commercial matters can become members e.g. China, Korea, Japan, Singapore, Philippines, Astana, Malaysia, Sri Lanka – to mention a few in Asia. All the countries that are important for Pakistan in terms of investment are members of SIFoCC. Pakistani judges can play an important role too, considering that the China-Pakistan Economic Corridor (CPEC), which is the flagship project of China’s Belt and Road Initiative (BRI), has been a huge motivation for starting this forum. SIFoCC facilitates collaboration between members’ courts to promote and share the best practices for a just and efficient resolution of commercial disputes.
(ii) Users Committee of the London Commercial Court
This was set up by the Lord Chancellor in 1977 as a Standing Committee, not a decision-making body. Its purpose is to provide a direct link between the commercial users of the court and the court itself, in order to improve the service that the court can offer. It does not have a constitution or statement of objectives but meets a few times a year to review the working of the Commercial Court from the perspective of judges, advocates and users. It is also an organized forum for maintaining statistics e.g. the number of new cases commenced, or information as to the outcome of arbitration applications under sections 67, 68 or s.69 of the English Arbitration Act 1996 (setting aside applications and appeals).
(iii) Case Management
Case management procedures adopted by commercial courts are judicially driven, and critical. Case management is not a process for its own sake. It is an essential ‘judicial grip’ on proceedings at all stages, whether pre-trial, trial, appellate or enforcement. It is an integral part of the judicial role in commercial disputes. The key to effective case management is early identification of what the common ground is, what the real issues in dispute are and what the requirement for an efficient and effective resolution really is. This streamlines proceedings, whether pre-trial, mediation, other ADR, or trial proceedings themselves. Successful case management requires the active cooperation of parties’ counsel, in close collaboration with the court. Elements of case management include timelines, extent and approach to disclosure/discovery, framing of issues, handling of interlocutory applications, adoption of ADR procedures with timelines, use of technology (especially during the COVID-19 pandemic but in future also), approach to witness testimony and expert evidence, and the active management of costs. The Ordinance in its earlier drafts had provisions for case management which, unfortunately, were removed from the final draft.
(iv) Importance of Pre-Trial Mediation/Negotiation
Compulsory or semi-compulsory mediation has been successful in several jurisdictions. In the Frankfurt Chamber for International Commercial Disputes, in general, the proceedings start with a conciliation hearing in which the possibilities for an amicable settlement are discussed with the parties. Similarly, in the China International Commercial Court, mediation is discussed early in the proceedings. Timing is key for mediation and requires strong discretion on behalf of the judge. The start of litigation may not be the best time to encourage mediation; it may be more appropriate to factor it into the case management timetable at a later stage, when the issues in dispute have been clearly defined, but before the case reaches trial. Here, the ability of a judge to act inquisitorially can be critical.
(v) Procedure
The early listing of cases, if achievable, is an incentive for early settlement, obviating the avoidance of an expensive and potentially destructive trial. In other words, efficient procedures in themselves are significant aids to settlement – which is generally by far the best commercial outcome. But this requires confidence on the part of users that the court will indeed stick to schedules and be ready and able to dispose of the case in the allotted timeframe. A common complaint in both litigation and arbitration pertains to the volume of documents, unfeasibly long submissions, and inclusion of all arguments – whether viable or not. Some courts, such as the Hong Kong Commercial Courts, impose page limits. The London Commercial Court now also has page limits on written submissions.
The London Commercial Court publishes “lead times” giving parties an indication of how long it will take to fix a hearing. There is also a strong predisposition on the part of judges against allowing adjournment of hearings without good reason.
The importance of procedure has also been emphasised by the Netherlands Commercial Court (which began its operations in 2019), in the following words:
“Dutch procedural law is recognised for being efficient, pragmatic and cost-effective as to speed. Dutch courts are amongst the fastest courts in the European Union with an average of 130 days from a notice to appear to a final judgment (EU Justice Scoreboard).”[18]
(vi) Technology
The setting up of new courts in the 21st century has made procedural innovations in technology possible to meet market demands. In England, electronic filing has been made mandatory for all professional users since 2017. Electronic bundles are frequently used in courts and there is a plethora of commercial software to support annotation, hyperlinks and searching. The advantage of technology was best exhibited in 2020 when the COVID-19 pandemic brought the world to a standstill. Because of technology, lawyers and courts were able to adapt within a matter of weeks from the time lockdowns had been imposed. Hearings went online in England, Singapore, Thailand and many other countries. Zoom, Microsoft Teams and other competitive software flooded the market to cater to a multitude of professional needs. A common sight in many courts and lawyers’ offices was the cockpit-style array of information technology with four screens running simultaneously, showing judges, opposing counsel, counsel making submissions, and live transcript. There would also be a fifth screen on the counsel’s side, the omnipresent WhatsApp to receive continuous instructions from clients.[19]
(vii) Foreign Law in Commercial Cases
While the procedure in any court will be governed by the law of the place where the court is located (the lex fori), cross-border commercial activity invariably results in disputes that are governed by multiple laws. This, in turn, raises complexities as to how foreign law is to be determined and applied. Different courts adopt different approaches to whether issues of foreign law are questions of fact (such as in England) or whether they may be presented by way of legal submissions (such as in DIFC Dubai). China International Commercial Court decides issues of foreign law by way of opinions provided by a member of their international commercial expert committee. The SICC in Singapore provides different options for the presentation of foreign law, including the admission of foreign counsel to present it. This is an important issue on which clear directions are required.
(viii) Enforcement
Where commercial courts are part of the domestic legal landscape, there may be no issues of enforcement, however, issues have arisen in some of the new ‘international’ commercial courts outside their home jurisdiction. Commercial litigation has no equivalent of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (for commercial arbitration) or the 1965 ICSID Convention (for investment arbitration). In 2019, the Hague Conference on Private International Law finalised a Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters which will come into force once the two signatories ratify it. While the 2005 Hague Choice of Court Convention applies in cases where the parties have agreed to a particular jurisdiction, the 2019 Convention applies independently of party agreement. It will take time to test how successful the 2019 Hague Conference will be. Till then, enforceability will depend on the domestic legislation of the country in which enforcement is sought.[20]
- Conclusion
Whatever their shape and structure, commercial courts are now an indispensable feature of commercial dispute resolution. They have the ability, by virtue of public jurisprudence and precedent, to direct the content and evolution of commercial law. They provide an effective route for the capacity building of the legal community and also have an ability to utilise and optimise modern technology as seen in the development of artificial intelligence applications in international arbitration.
A journey of a thousand miles begins with a single step. This single step taken by the Punjab Commercial Courts Ordinance 2021 is undoubtedly a leap and a leap in the right direction. Having made this leap under the stewardship of Chief Justice Qasim Khan and the likes of the indefatigable Justice Jawad Hassan, one must not allow cultural myopia to pause progress in any way. Now is the time for Pakistan to take stock of what is happening in the world and adapt accordingly. Summary judgment, case management, court-sponsored pre-trial mediation and ADR are no longer revolutionary innovations – they are the universally recognised components needed for the superstructure of a commercial court and are essential for full participation in global commerce.
References
[1] I am most grateful to the team at NBM Law Chambers, in particular Ashan Khalid, Nosheen Zain, Ateeb Ali, for their assistance in research, enthusiasm and for finding obscure references. All errors remain my own.
[2] ‘Commercial Dispute Resolution: Courts and Arbitration,’ Speech delivered at the National Judges College, Beijing China on 6 April, 2017. Speech by The Rt Hon. The Lord Thomas of Cwmgiedd: Commercial dispute resolution: courts and arbitration (judiciary.uk)
[3] The China International Commercial Court was established considering China’s Belt and Road Initiative (BRI) and the Astana International Financial Centre (AIFC) in Kazakhstan is seen as strategic both as regards BRI and the development of commerce and business in Central Asia generally.
[4] A national newspaper wrote “… was a bad appointment for although a popular man and thorough Englishman, Mr. Lawrance has no reputation as a lawyer, and has been rarely seen of recent years in the Royal Courts of Justice … The blight of politics falls everywhere, and nowhere more fatally than upon the judicial Bench.” V.V. Veeder, ‘Mr. Justice Lawrance: The “true begetter” of the English Commercial Court’ (1994) LQR 110, pp.292-306.
[5] Annual Report 2012 and 2018, Administrative Tribunals and Special Courts, published by the Secretariat of Law and Justice Commission of Pakistan. http://ljcp.gov.pk/assets/dist/publication.
[6] Commercial & Overseas Pakistanis Cell – Lahore High Court | About (lhc.gov.pk)
[7] Notification No. 6032/DDJ/DR (PD&IT) dated 28.04.2020.
[8] Vol.1, Chapter 1, Part-K, Rules 10 & 11, Lahore High Court Rules and Orders.
[9] Pizza Hut v Multan Development Authority and others (W.P. 2761/2021), pp.17-18.
[10] Section 2 of the Ordinance.
[11] This has been substituted in the 2018 amendment of the 2015 Act by section 4 for “which shall not be less than one crore rupees”.
[12] Thomas Carothers, The Rule of Law Revival, Foreign Affairs (1998); Brian Tamanaha, The History and Elements of the Rule of Law, Singapore Journal of Legal Studies (2012).
[13] RM Goode, Commercial Law in the Next Millennium (Sweet & Maxwell, 1998) pp 8 – 9.
[14] Sundaresh Menon, ‘International Courts: Towards a Transnational System of Dispute Resolution’, DIFC Courts Annual Lecture Series 2015.
[15] The three Gulf courts (Abu Dhabi, Dubai, and Qatar) and the AIFC court in Kazakhstan are heavily influenced by English common law procedures and principles. All these courts operate within institutional structures of financial centres.
[16] Sundaresh Menon, Annual COMBAR Lecture delivered in November 2013 at Lincoln’s Inn Old Hall, England.
[17] Sundaresh Menon, “International Commercial Courts: Towards a Transnational System of Dispute Resolution”, Opening Lecture at the DIFC Courts 2015.
[18] 2020 EU Justice Scoreboard. See justice_scoreboard_2020_en.pdf (europa.eu)
[19] History was made in Lahore in July 2020 when Mr. Toby T. Landau QC – an international arbitration and commercial law specialist – argued before the UK Supreme Court from the offices of NBM Law Chambers in the case of Enka v Chubb [2020] UKSC 38. It was the first time in the history of the English House of Lords / Supreme Court that counsel addressed the court from Pakistan.
[20] Here again, the differences in common law and civil law approaches become apparent. Common law treats a foreign judgment as in itself giving rise to a cause of action while civil law makes it a matter of reciprocity.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which she might be associated.
