Exploring Notions of Public Policy and Arbitrability in Commercial Arbitration: Insights from Pakistan, the UK, US and India

Abstract

This paper is a detailed analysis of the doctrines of arbitrability and public policy in the domain of commercial arbitration in the context of changing legal environment in Pakistan. The article surveys leading judicial decisions in Pakistan and traces the evolution of the law of arbitration from ancient decisions to recent judgments, including major cases till 2024. It then examines how Pakistan's courts have reacted to and implemented these doctrines, especially with respect to the recognition and enforcement of foreign arbitral awards under the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011, and the extent to which Pakistan is aligned with international conventions such as the New York Convention. Besides, it also provides a comparative analysis with India, the UK, and the US alongside a detailed probe upon the judicial viewpoint in Pakistan. It juxtaposes the similarities and divergence in approaches taken to arbitrability and public policy in these jurisdictions, explaining and examining how courts are able to balance party autonomy with the interests of justice, morality and legal values at large. By examining key decisions, the article highlights the broad range of court intervention in arbitration and signals that many courts have become pro-enforcement. The paper provides pragmatic indications of how arbitration practice may evolve in the future in response to regional and global trends. In addition, this article also investigates the evolving trend of Pakistan’s judiciary vis-à-vis the concept of public policy, more particularly in the context of arbitration enforcement. It charts the transformation from a more interventionist and expansive approach to a more circumscribed one and a pro-enforcement to its parallel with international arbitration standards and the accommodation of domestic legal principles by the judiciary. This changing viewpoint is examined through significant court rulings, providing information on how Pakistani courts handle the nexus between arbitration law and public policy.