Arbitration and Constitutional Justice in Pakistan: Reconciling Party Autonomy with Fundamental Rights

Abstract

The ascendancy of arbitration as the preferred mechanism for commercial dispute resolution, championed for its efficiency and the principle of party autonomy, has engendered a complex legal confrontation with the foundational tenets of constitutional justice in Pakistan. This article argues that the relationship between arbitration, governed by the pro-enforcement Recognition and Enforcement (Arbitration Agreement and Foreign Arbitral Awards) Act, 2011, and the enforcement of fundamental rights under the Constitution of 1973, is not one of hierarchy but of a necessary and evolving symbiosis. The analysis identifies the precise crucibles of this conflict: arbitration involving State-Owned Enterprises and public funds, the non-waivability of fundamental rights, procedural fairness under Article 10A, and the tension between confidentiality and the public's right to information. The article critically examines the Pakistani judiciary's jurisprudential tightrope, navigating between a trend of deference to arbitral finality in private disputes and an interventionist trend, via Article 184(3) and an expansive "public policy" doctrine, in matters of significant public interest. Ultimately, the article proposes a calibrated "spectrum of scrutiny" model as a pathway to reconciliation, where the level of judicial intervention is context-dependent. It concludes that for arbitration to thrive as a credible institution, it must operate within the constitutional shadow, requiring disciplined judicial focus on procedural integrity, legislative clarity, and a heightened sense of duty from arbitrators to uphold mandatory law, thereby balancing private commercial efficacy with the state's inviolable duty to protect constitutional norms and public trust.

Keywords: Arbitration, Constitutional Justice, Party Autonomy, Fundamental Rights, Public Policy, Pakistan, Judicial Intervention, State-Owned Enterprises