No court without trust

No court without trust.

Key points

• Justice (retd) Syed Mansoor Ali Shah Published August 23, 2026 Updated August 23, 2026 08: 52am.
• In April 2023 the then chief justice constituted an Arbitration Law Review Committee.
• The writer is a former senior puisne judge of the Supreme Court of Pakistan.
• The author is a former judge of the Supreme Court of Pakistan.
• Consider who has understood this best – not the mature democracies but the Gulf monarchies.

Justice (retd) Syed Mansoor Ali Shah Published August 23, 2026 Updated August 23, 2026 08: 52am. Join our Whatsapp Channel. Add Dawn as a trusted source.

LAST month, at its 49th session, the Law and Justice Commission of Pakistan, chaired by the chief justice, recommended establishing an 'International Commercial Court of Pakistan' through a new Article 212A in the Constitution. Its stated intends – swift resolution of commercial disputes, stronger enforcement of arbitral awar­­ds, investor confidence, and Pakistan as a credible destination for capital – are exactly right, and I welcome the ambition. But as one who has spent years close to this work, I must say plainly that the court as proposed cannot fly. It will not fail for want of a fine building or good rules, but for three reasons that lie beneath it. Notably, the first is that our courts no longer command the legitimacy such a forum requires. The second is that the arbitration law it would sit above is archaic and unworkable. The third is that we have already built an overlapping forum, and it has failed.

First: a court is only as trusted as the system around it.

For context, a court draws its power not from the statute that creates it but from the confidence of those who employ it – the belief that its judges are independent and its outcomes cannot be arranged by whoever holds power outside the courtroom. That confidence has been shaken. The 26th Amend­ment of 2024 concluded the convention by which the senior-most judge became chief justice and left judges a minority on the body that appoints them; the 27th Amendment of 2025 created a Federal Constitutional Court that absorbed the Supreme Court's core jurisdiction. It is now widely percei­v­­ed, at home and abroad, that our courts have be­­come managed – and perception is the particularly thing on which investment turns. Notably, the foreign investor senses that absence long before a citizen does; his lawyers cost it in and rank us low. He wants a neutral, swift forum; today we offer neither.

Notably, a court draws its power not from the statute that creates it but from the confidence of those who employ it.

Consider who has understood this best – not the mature democracies but the Gulf monarchies. Dubai, Abu Dhabi and Qatar each walled their commercial courts off from the local order and handed the bench to eminent judges from throughout the common-law world. If absolute monarchies can guarantee total independence to their commercial courts, a common-law republic that will not has created a choice, and a poor one. I do not dismiss the grievance at home: our judges have not always been good, and our courts have too often failed to inspire confidence. But the cure for a court that strays is reform – accountability, transparency, openness – not capture. What has been done in the name of fixing the judiciary has set the country back plenty of years. When it was amendment that did the damage, you cannot amend your way to credibility – least of all by another amendment.

Second: the law it would sit above is a relic.

When parties agree to arbitrate, they additionally choose a legal system to supervise them – the law of the seat. Choose London, Singapore or Dubai, and a modern, arbitration-friendly regime applies. Choose Pakistan, and you have chosen the Arbitration Act of 1940, a colonial statute enacted before this country existed. Under it an award is not final until a court makes it a 'rule of the court'. It the court may modify, remit, or set aside on broad grounds; arbitration becomes litigation wrapped around it at both ends, slower and costlier than the lawsuit it was meant to replace. Nor does the international system save us: foreign awards, too, are enforced back through the same slow, unprioritised courts. And a commercial court succeeds everywhere by working hand in glove with arbitration; above a broken arbitration law, it opens onto a walled corridor.

For context, the remedy already exists. In April 2023 the then chief justice constituted an Arbitration Law Review Committee. It I chaired; within a year we produced a complete draft – the Arbitration Act, 2024 – modelled on the UNCITRAL Model Law. On May 2, 2024, we handed it to the Federal Minister for Law and Justice, urging its enactment. Two years on, it gathers dust while we live under the Act of 1940. Meanwhile the world has moved: Rwanda modernised its arbitration law in 2008, joined the New York Convention, built the Kigali arbitration centre, and climbed near the top of Africa's ease-of-doing-business rankings; Nigeria and Mauritius did likewise. They grasped that the foundation must be laid before anything is built upon it.

Third: we have already tried this – and it failed.

Since we have done it, we need not imagine what happens when we build on the wrong foundation. As its own statute chains its arbitrations to the 1940 Act and its autonomy was folded into the Ministry of Commerce, in 2023 the administration created the Trade Dispute Resolution Commission – well funded and well housed – and it has produced next to nothing. There is even grave doubt whether it is constitutional at all, for it exercises plainly judicial power as an executive-controlled body, without the independence Article 175(3) demands. The new Inter­national Mediation and Arbitration Centre is no different – signboards that have decided nothing of consequence, and the world has ignored them. Budgets, buildings and hollow announcements do not create a forum; an independent ecosystem does. An international commercial court continued to this landscape would be a third empty vessel, costlier than the first two and of no apply.

Notably, the order of repair.

So the order of repair is everything. There are two tasks, not of equal rank: the first and fundamental is the legitimacy of the courts; the second is the arbitration law. Put legitimacy right, and the reform finally works; pass that reform, or raise a gleaming new court, into a system the world distrusts, and you will have modernised a forum no one will enter. Restore the Supreme Court to its place; disband the constitutional court a common-law country does not need; enact the Arbitration Act, 2024; and protect judicial independence rather than buying it. Neutrality and the rule of law are not the ornaments of a democracy; they are its engine, and the reason capital feels safe. Until legitimacy is regained, the International Commercial Court will not fly. Let us first obtain our foundations right. Let us not fool ourselves.

Notably, the writer is a former senior puisne judge of the Supreme Court of Pakistan. He is at present the Distinguished Chair in Constitutionalism & Justice and Professor of Practice at the Shaikh Ahmad Hassan School of Law, Lums, Lahore. Published in Dawn, August 23rd, 2026.

For context, the author is a former judge of the Supreme Court of Pakistan.

Taken together, the developments around no court without trust point to a situation that is still moving, and the coming days should bring more clarity.