ICCP: cosmetic step or landmark reform

Legal community weighs pros and cons of proposal

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ISLAMABAD:

Former Supreme Court judge Mansoor Ali Shah on Monday raised serious questions on the superior judiciary's proposal to establish of International Commercial Court of Pakistan (ICCP) through constitutional amendment, saying that the ICCP could not become a destination for global commerce unless Pakistan first restores confidence in the rule of law, judicial independence and constitutional governance.

Talking to The Express Tribune, former Supreme Court judge Mansoor Ali Shah said until those foundations are firmly in place, creating a new court risks being perceived as a cosmetic reform rather than a meaningful one.

Justice Shah said that institutions could not be created merely by announcement. "The proposal to establish an International Commercial Court of Pakistan raises more questions than it answers as the announcement provides no details of the proposed court's jurisdiction, composition, appellate structure, procedural law, relationship with arbitration, or whether international judges will be appointed. Without these essentials, any meaningful assessment is impossible."

He former SC judge further stated that international commercial courts do not derive credibility from constitutional amendments or legislation as they derive it from the legal ecosystem in which they operate. "Investors assess the independence of judges, certainty of the law, enforceability of contracts, respect for arbitral awards and freedom from executive interference. They invest in institutions, not slogans."

The retired justice said that jurisdictions such as Dubai, Abu Dhabi and Qatar are often cited as successful examples. Their political systems may differ from constitutional democracies, but they have consciously built commercial justice systems that command international confidence.

"They have not suffered from a perception that their commercial courts have been institutionally captured or staffed with judges lacking independence. Their commitment to commercial rule of law is precisely what gives investors' confidence," he added.

He further stated that Pakistan presents a different picture. It continues to rely on the outdated Arbitration Act, 1940, which embodies a philosophy of extensive judicial intervention rather than modern arbitration.

"More importantly, confidence in any commercial court ultimately depends upon confidence in the judiciary itself. If judicial independence is questioned, no specialised commercial court can overcome that institutional deficit," he added.

Barrister Asad Rahim Khan said that it is quite incredible, at a time when the constitutionality of historically regressive amendments has not even been touched upon for years on end, that the court concern itself with such matters. "This is our new language of rights: QR codes, lightbulbs, digitisation, commerce, while unbelievable sentences are being handed down to lawyers like Imaan Mazari and Hadi Chattha."

Former federal minister Fawad Chaudhry, who himself is an advocate, said that the pursuit of structural expansion through increased bureaucracy or new courts ignores the underlying crisis of institutional legitimacy.

"The 26th and 27th amendments have catalysed a sharp decline in judicial credibility. To move forward, we must abandon superficial fixes and undertake a comprehensive structural reform, anchored in a commitment to merit and public accountability", says Fawad Chaudhry.

Abdul Moiz Jaferii advocate, however, said that considering that Pakistani businesses would do anything to keep their disputes outside the Pakistani legal system, it is hilarious that the LJCP feels that an international court of commerce is viable in this country.

"In the name of expediency, we have tried to create exceptions on multiple occasions; rather than trying to fix the problems faced by the judicial system itself. We made terrorism courts to get the terrorists, banking courts to speed up the justice process there, drug courts and lately the constitutional court."

Jaferii further states rather than carving out yet another exception to the delays and the lack of competence which are complained of, it would be better to focus on raising the standard of judicial delivery across the normal route and through normal courts.

The former law officer, commenting on the proposal, states that more courts, more appointments, more protocols and unending perks would be the outcome.

"What business judges have proposing laws. Their constitutional obligation to interpret the laws and decide cases and not as adviser to parliament."

However, Hafiz Ahsaan Ahmad Khokhar welcomed the proposal. He termed the recommendation a landmark constitutional and judicial reform that is the need of the hour for strengthening Pakistan's commercial justice system and supporting sustainable economic growth.

He observed that specialized commercial courts have become a defining feature of successful economies, citing the Singapore International Commercial Court (SICC), the United Kingdom's Business and Property Courts, the Dubai International Financial Centre (DIFC) Courts, the Abu Dhabi Global Market (ADGM) Courts, and the Delaware Court of Chancery in the United States as globally recognized models. These institutions have substantially improved commercial dispute resolution by providing specialist judges, swift procedures, predictable outcomes and internationally respected judgments, thereby strengthening investor confidence and attracting foreign investment.

According to Khokhar, Pakistan must adopt a similar institutional model to meet the growing demands of international commerce and cross-border investment.

He emphasized that the proposed Federal Commercial Court should be vested with exclusive jurisdiction over high-value commercial disputes, international commercial contracts, foreign investment disputes, cross-border trade and business transactions, banking and finance, corporate and shareholder disputes, mergers and acquisitions, infrastructure and energy projects, public-private partnerships, insurance and reinsurance matters, insolvency and restructuring, shipping and maritime claims, intellectual property, electronic commerce, competition law, and all arbitration-related matters, including the recognition and enforcement of domestic and foreign arbitral awards.