Islamabad Law Review

A Quest for a ‘TWAIL’ Approach in International Investment Arbitrations: An Appraisal of Tethyan v. Pakistan

2024-12-16T19:19:09+05:00

International Investment Arbitration is an institution of growing importance to global economic governance. Twenty years ago, its Tribunal awards were measured in the tens of millions USD, today they can reach tens of billions – enough to push under-developed states into financial crisis. This study contends that the growth in awards, and the reasoning used to justify the awards, manifest a structural bias in favour of investors. To illustrate this bias in practice, the present work focuses closely on a single arbitral award, offering a granular analysis of its reasoning. Thus, it explores in what ways, and to what extent, did the Tribunal in Tethyan transform the law regarding investors’ legitimate expectations, and states’ correlative duties? In doing so it uncovers the subjectivity and politics of this supposedly objective decision. To demonstrate this, this study highlights the ways in which the Tribunal in Tethyan v. Pakistan invented facts, imposed duties that it had previously ruled not to exist, and manipulated novel obligations to produce the grounds it needed to establish that the “readily ascertainable” value of a $ 219 million investment amounted to $ 4.1 billion ($ 5.9 billion including interest accrued).

Decoloniality and Mortgages: A Legal Discourse in Pakistan’s Perspective

2024-12-16T19:26:15+05:00

This article argues that, after independence, Pakistan inherited the legal system of British India; based on the principles of common law having least concerned with customary practices of subcontinent as well as personal laws of indigenous communities; erected to strengthen the ongoing colonization of subcontinent. Three quarters of a century has been passed since independence but still some of very important statutes are from colonial era; the “Transfer of Property Act, (TPA) 1882” is one of them, based on English principles of real property, deals with creation and disposition of rights and interests over immoveable property by act of individuals. TPA, 1882 provides six kinds of mortgages, most of them were those originated and practised in United Kingdom during eighteenth and nineteenth centuries or even before; customary mortgages of subcontinent were ignored while drafting TPA, 1882. Pakistan still has more than one hundred- and forty-years old kinds of mortgages which are also out of practise in the United Kingdom now. This article analyzes two kinds of mortgages namely “mortgage by deposit of title deeds” and “anomalous mortgage” through the lens of decoloniality. The article suggests that mortgages may be modernized and decolonized through legislative amendments.

An Analytical Study of Compliance of Banking Institutions of Pakistan with Anti-Money Laundering Regulations: Legal Challenges and a Way Forward

2024-12-16T19:33:25+05:00

The primary aim of this paper is to analyze the compliance of banking institutions in Pakistan, with international and domestic anti-money laundering (AML) regulations. Recently, at least 6 Pakistani banking institutions have been implicated in an investigation involving money laundering. Moreover, the US State Department has designated Pakistan as a State of Special Attention for laundering money and suspicious transactions. For this research, doctrinal legal research methods are used to critically examine the statutes, regulations, policies in Pakistan alongside international laws, treaties, conventions and other existing data requiring banking institutions’ compliance with AML regime. Money laundering has a negative impact on the economic growth of the country through boosting the underground economy and criminal enterprises. The strict banking secrecy is major obstacle for banking institutions’ compliance with the anti-money laundering regulations. Banks prioritize interests of their clients over compliance with regulations. The lack of any major penalties such as fines or imprisonment for the employees in case of non-reporting, absence of use of innovative technology and absence of any profound whistle-blowing policies also helps criminals to exploit the banking institutions systems for laundering money. The paper provides new perspectives into assessing banking institutions' compliance with all applicable anti-money laundering standards.

Preserving the Cultural Heritage: The Significance of Protecting Basmati Rice as a GI Product for Pakistan and India in International Trade

2024-12-16T19:56:37+05:00

Basmati rice has historical, cultural, and economic significance for Pakistan and India due to its distinct long-grain quality, flavor, and aroma. It holds a colossal value in international trade, and because of its uniqueness, it is globally recognized as a Geographical Indication (GI) product. It is geographically exclusive to both Pakistan and India. Unfortunately, Basmati rice in Pakistan was registered in 2021. With the growth of international trade, enforcement of regulations to protect GIs is also becoming increasingly complex. This paper, therefore, compares the international instruments and the legal frameworks of Pakistan, India and European Union (EU) concerning the conservation of GIs, especially relating the preservation of Basmati rice. It also analyzes the cultural and economic importance of Basmati rice for both Pakistan and India by highlighting the need to protect this valuable commodity as a shared heritage. The objective of this paper is to accentuate the significance of safeguarding Basmati rice as a GI product in the context of international trade. This study was carried out using a descriptive and mixed research technique. It concludes by highlighting the need to enhance the preservation of Basmati rice as a GI product, ensuring its continuous recognition and worth in international trade.

The Judiciary during Benazir Bhutto’s Second Term (1993-1996): An Analytical Study

2024-12-15T06:35:11+05:00

This paper explores Benazir Bhutto's deep resentment and hatred against the judiciary, stemming from the execution of her father in April 1979. These feelings further deepened over judiciary silence in the face of human rights abuses during the eleven-year long tenure of Zia-ul-Haq’s regime. During this time, Benazir, along with other PPP leaders and workers remained behind bars for several years on political grounds but hardly obtained any relief from the judiciary. During her first term, the judiciary was largely hostile to her government and declined to restore it when it was dismissed in 1990. Against this backdrop, during second term in 1993, Benazir attempted to assert influence over the judiciary by packing it with like-minded judges which led to a confrontation between her government and the judiciary. This study will help in understanding the efforts made by political leaders to influence the judiciary, as well as the challenges they face in doing so. Utilising a qualitative methodology, this study conducts a comprehensive analysis of primary and secondary sources. The study also indicates that the judiciary has historically tended to exhibit submissiveness during military regimes, whereas civilian governments have often been unable to establish effective control over it.

Book Review: Teaching International Law

2024-12-16T19:49:05+05:00

With international law's broad application and its deep analysis of state-to state interactions, having a thorough reference that explores the nuances of teaching this field is essential. As beneficial as a qualified teacher can be, they are not enough in the absence of a trustworthy legal textbook. Books and the timeless wisdom they impart are eternal, but teachers are known to be ephemeral. Many topics related to the field in question are covered in the recently released book "Teaching International Law," co-edited by Peter Hilpold and Giuseppe Nesi. This extensive work explores the complexities of international law in a globalized context where new issues keep coming up, contradicting the common wisdom that nations are the only subjects of international law. In addition, it looks at instructional strategies that can help with the modern "Humboldtian dilemma," which aims to strike a careful balance between research and teaching while taking into consideration the lean management systems or VUCA (vulnerability, unpredictability, complexity, and ambiguity) teaching approaches in international law.