ARBITRATION is the buzzword these days in legal and business circles. A few decades ago, regarded as the esoteric pursuit of a few commercial lawyers, today it is everywhere. It is promoted as a viable and expeditious alternative to litigation. It promises to reduce the burden on overloaded judicial dockets. In investor-state disputes, it is projected as enabling good governance.

Some days ago, it reared its head in an unlikely place: the hearing of applications for constituting a larger bench in the 26th Constitutional Amendment case. A learned judge contradicted the submission by counsel that judicial failure to conform to international norms is impeding foreign investment. According to the judge, what investors primarily want are speedy decisions by commercial courts and early enforcement of arbitration awards.

This is true. Expeditious enforcement by courts is of little consequence, however, where judges are found wanting in impartiality and independence. If that was not so, denial of justice or of fair and equitable treatment would not be international standards to which states must conform. Gone are the days when it was, perhaps, arguable that judicial conduct cannot be attributed to the state.

Now, international law is to the contrary. The International Law Commission’s ‘Articles on Responsibility of States for Internationally Wrongful Acts’ put this beyond doubt. But for this we may have escaped liability in two major international investment-arbitration cases. The breach of international law obligations in both was, to a significant degree, occasioned by Supreme Court judgements.

Arbitration is not a silo. Those who think in silos come to grief early.

Arbitration is not a silo. Those who think in silos come to grief early. At several stages, from commencement to enforcement, its success depends on robust judicial conduct. It is also not self-contained. Every young lawyer, eager for a career in international arbitration, is taught that the first step is to acquire a thorough understanding of the laws of contract and of civil and commercial rights.

Hon. Judge Charles N. Brower’s recent readable and learned book Judging Iran: A Memoir of the Hague, the White House and Life in the Front Lines of International Justice is a treasure trove of information about the world of international arbitration and the challenges for domestic courts. It shows how all-round experience as a lawyer helps launch a successful international career.

At Harvard, he did not take more than one international law course, fearing it would diminish his job prospects with leading law firms. Later, he worked for a Wall Street law firm, while also appearing pro bono to defend indigent litigants. In time, he worked with the Ford, Carter and Reagan administrations on diverse issues. He appeared both for states and investors, in international arbitration and domestic litigation, and was appointed by the United States government as a judge to the Iran-United States Claims Tribunal. A successful career as a much-sought-after international arbitrator followed.

His book highlights the advantages of international arbitration. Investor-state arbitration is a significant development in international law. Unlike the past, it facilitates an individual to directly sue a foreign state, without the intervention of his home state.

The message is that being anti-business is not smart economic strategy. He is, however, conscious of its limitations. While a state can be sued by a foreign investor, it cannot counterclaim for human rights violations or for environmental damage. Rich in anecdote, the book is a wonderful starting point for anyone thinking of a career in international arbitration and a treasure trove of knowledge for experienced practitioners.

The Iran-USCT jurisprudence is rich in insight. From tru­ncated tribunals to judges assaulting ju­­dges, from the value of precedent to bone-

headed challenges to arbitrators, from principles for determination of state liability to the measure of freedom for states to regulate, in the public interest, a wide range of issues were raised and determined. Its decisions strengthened the foundations of international commercial law.

Devoted to the subject, which combines his passion for law with an interest in international affairs, Judge Brower rightly asserts that foreign investors are suspicious of a judiciary which lacks a solid reputation to dispense impartial justice. Without an independent judiciary, there cannot be a predictable and stable legal system for dispute resolution.

Its absence leads to shoals, where not only challenges to bench formation but also international arbitrations run aground. It signals that those who venture forth irrespective do so at their own peril. Sensible foreign investors naturally steer clear.

The writer is a lawyer.

Published in Dawn, November 18th, 2025