Author: Rana Sajjad*
“If you build it, they will come,” goes a popular line from “Field of Dreams,” a movie about a farmer who builds a baseball field in his cornfield. The oft-quoted line from the movie connotes that if you build something, your proverbial baseball field, with passion and determination, customers, clients, or more broadly users of the product you have built or the service you are offering will certainly come to buy or use it. But if you build it, sometimes they will not come, something I was told by an official at an international institution in the U.S. while I was introducing CIICA, the international arbitration center I had set up not too long ago. Upon hearing this remark, I thought to myself: Seriously? Why would they not come? If you have checked all the boxes and built an institution modeled on the lines of leading arbitral institutions around the world, what could possibly be wrong with how it was built? They will definitely come.
Establishing an arbitral institution is undeniably a huge undertaking. However, if you have a template that can be emulated or adapted to the best of your ability within the given constraints of limited human and financial resources, the odds are that you cannot really go wrong. Of course, the presumption is that there is either a market for it or the potential for creating one. The belief, then, is that it may take time, and slowly but surely, they will come. And when they come, they will come in droves, especially when you reach the “tipping point,” a term popularized by Malcolm Gladwell in the book of the same title referring to that point of critical mass beyond which a significant and unstoppable change takes place.
So, around nine years on, are they coming to CIICA’s “Field of Dreams”? Has it reached the tipping point and set off that unstoppable wave of change? The more appropriate question is: If they are coming, what exactly are they coming for? They certainly are coming and have been coming from the very outset. First, they came in large numbers around nine years ago for the inaugural event amidst the customary fanfare, and they continued coming to CIICA’s subsequent events, including the first one in Pakistan in collaboration with the United Nations Commission on International Trade Law’s Regional Center for Asia Pacific to commemorate CIICA’s 3rd anniversary. The conferences kept getting bigger and better in terms of the number of attendees and the profiles of speakers, and they continued to keep coming. We were generating momentum, and we knew we were on to something. But is that why CIICA was built, and is this what we wanted them to come for?
Getting the best and the brightest together in a room to talk about international arbitration’s critical issues, important trends, and fundamental problems, as well as proposing solutions, certainly was one of the motivations for setting up CIICA. It indeed has been a fulfilling experience meeting with and hearing from well-respected and highly accomplished international arbitration practitioners from around the world, some of whom came to Pakistan for the first time to participate in CIICA’s conferences. We fervently believed that CIICA was not just organizing large, prestigious conferences; we were building or rather rebuilding Pakistan’s image in the international arbitration community. We were putting Pakistan on the map!
However, organizing conferences to promote and raise awareness of arbitration was just one part of CIICA’s overarching mission, which also includes offering institutional arbitration services to promote and enable its wider adoption across Pakistan. We figured that after all those grand conferences, training workshops, and collaborations with international organizations, CIICA would be on the potential users’ radars. If CIICA was the only center offering institutional arbitration services that had advantages over ad hoc arbitration and, in several cases, over commercial litigation, it would only be a matter of time before it became the preferred dispute resolution method.
Over the years, to reassure potential users of CIICA’s integrity and association with well-respected individuals, we also brought on board accomplished lawyers, retired Judges (a popular choice for arbitrator appointments in Pakistan), and some leading international arbitration practitioners from outside Pakistan as members of our advisory council and panel of arbitrators. However, it still did not appear to move the needle on institutional arbitration in a substantial way, and we wondered what the cause of this stubborn problem was. Did they, the potential users, not understand how arbitration worked? Did they understand it but not trust it? And what exactly did they not trust? The process, the people, or just the idea of institutional arbitration being new and largely untested in a country where the term arbitration was essentially synonymous with ad hoc arbitration?
One concern raised was how the Pakistani courts would view and interpret an arbitral award rendered upon the conclusion of the proceedings administered by an arbitral institution. Since there were no such precedents and Pakistan’s arbitration regime only referred to arbitration with or without the intervention of the court, we had to assure them that there was no bar or express prohibition on institutional arbitration. Who said that being the first mover was always an advantage?
We continued tweaking and reframing our pitch, our Unique Value Proposition (UVP), and communicated it in a simplistic and comprehensible manner: Institutional arbitration is essentially the same as ad hoc arbitration but only better. It offered compelling advantages over ad hoc arbitration, such as streamlined rules, a panel of experienced arbitrators and industry experts, and professional secretarial support. They had nothing to lose, and all they had to do was replace their ad hoc arbitration clause with an institutional one. It sounded like a no-brainer, so what part were they not getting? Were we not doing a good job of getting our point across? Did we have to articulate our UVP differently? Or, perhaps we were not talking to the right people, the potential early adopters, those who not only understood institutional arbitration but would also take a chance on it by writing CIICA’s institutional arbitration clause in their contracts.
While pondering all these questions, there were moments when we zoomed out and asked ourselves the even bigger and, perhaps, more appropriate question: Was institutional arbitration a solution looking for a problem in Pakistan?
This is the first of a two-part blog post.
* Rana Sajjad is a dual-qualified lawyer (licensed in New York and Pakistan). He is the Managing Partner of Triage Law, a Lahore-based commercial and arbitration law firm, and the Founder & President of the Center for International Investment and Commercial Arbitration, Pakistan’s first international arbitration center.