What can I do if the other party refuses to participate in arbitration?

A party's refusal to participate in arbitration in Pakistan does not necessarily prevent the agreed dispute-resolution process from proceeding. The correct remedy depends on whether the arbitration is domestic under the Arbitration Act, 1940, international or foreign-seated under another applicable framework, and whether the defaulting party refuses appointment, attendance, evidence production or compliance with an interim direction. The arbitration agreement and procedural stage are decisive.

Under the domestic Arbitration Act, sections 8, 9 and 20 provide important mechanisms for appointment or court-assisted reference where parties fail to cooperate. The tribunal's ability to proceed in the absence of a party depends on lawful notice, authority and procedural fairness. A resulting award must be capable of surviving the statutory grounds for challenge.

Determine the form of arbitration

Read the complete dispute clause, including seat, applicable law, number of arbitrators, appointing authority and institutional rules.

A clause providing domestic arbitration in Lahore under the 1940 Act presents a different legal route from ICC arbitration seated in Singapore.

Do not assume a Pakistani court can make every appointment for a foreign-seated proceeding simply because one party resides here.

Refusal to nominate an arbitrator

Section 8 of the Arbitration Act, 1940 addresses appointment in defined circumstances where parties fail to concur or an appointed arbitrator cannot act.

The provision contemplates written notice calling for appointment and a fifteen-clear-day period before a qualifying court application.

The party seeking assistance should follow the exact statutory and contractual procedure rather than nominate an arbitrator unilaterally without authority.

Two-arbitrator arrangements

Section 9 addresses specified cases involving one arbitrator appointed by each party and default after lawful notice.

The provision may allow consequences including appointment of a sole arbitrator under defined conditions, subject to court powers and contrary contractual intention.

Its specific prerequisites should be verified before asserting the resisting party has forfeited all participation rights.

Section 20 court reference

Section 20 provides a mechanism to apply to court for filing and reference under a pre-existing arbitration agreement where a dispute has arisen.

The court gives notice and may order reference when the applicable conditions are satisfied.

This route can be appropriate where the other side refuses to recognise or implement an agreement to arbitrate, but jurisdiction and maintainability must be checked.

Notice of dispute

Before appointment, send a legally effective notice identifying the contract, dispute, relief and the clause relied upon.

Use the contractually required address, language and service method, retaining proof of delivery.

An informal text saying "we are going to arbitration" may be insufficient if the agreement prescribes a formal notice of dispute.

Appointing institutions

Many institutional rules permit an institution or appointing authority to complete appointments when a party defaults.

Follow those rules rather than applying the domestic statutory fifteen-day mechanism mechanically.

Check institutional fees and the consequences of a respondent refusing to pay its share of advances.

Refusal to submit a defence

A respondent may fail to file a statement of defence after proper notice.

The tribunal may proceed according to the applicable rules, but it should still evaluate the claimant's evidence rather than treat silence as conclusive proof of every allegation.

An award entered without lawful notice or opportunity to be heard can face serious enforcement problems.

Evidence and fair process

The tribunal must use its authority within the agreement and governing law, respecting reasonable procedural opportunities.

A claimant should organise contracts, invoices, correspondence and witness evidence despite the opponent's absence.

The fact that the respondent is obstructive does not justify an unsupported or excessive award.

Interim relief and assets

A nonparticipating party may dispose of disputed property or information while arbitration is pending.

Consider whether the relevant Arbitration Act provisions, institutional rules or court jurisdiction permit interim protection.

The application should identify the assets, threatened action and connection to the arbitration, rather than request a blanket freeze of unrelated property.

Costs of nonparticipation

The arbitral tribunal or court may have powers to allocate specified costs under the agreement and governing framework.

A party's refusal to engage can be relevant to procedural management, but punitive costs are not automatically available in every case.

Keep invoices for arbitrator, institutional and hearing expenses.

Avoid mistaken waiver arguments

A party failing to attend one meeting does not necessarily relinquish every future procedural objection.

The tribunal should consider notice, extensions and the rules before proceeding ex parte.

The claimant should avoid procedural shortcuts that could later invalidate months of work.

A domestic supply example

A Pakistani supplier invokes a clause providing a sole arbitrator appointed jointly, but the buyer refuses to respond to appointment requests.

The supplier may send the formal section 8 notice and, after satisfying the statutory period and requirements, seek court appointment where applicable.

The buyer's refusal should not leave the underlying dispute permanently unresolved.

A foreign institutional example

A Pakistani company is respondent in arbitration seated abroad under agreed institutional rules and refuses to nominate an arbitrator.

The institution may appoint according to its rules, and the tribunal can proceed subject to due process.

The company risks an enforceable award even without active participation, so refusing to engage is generally a poor protective strategy.

Enforcement later

A domestic award may require filing and court proceedings under the 1940 Act. A foreign award may engage the Recognition and Enforcement Act, 2011.

Notice and procedural fairness will be important to any challenge or enforcement resistance.

A claimant should preserve proof of every procedural communication.

Opinion and recommended course

Refusal to participate does not automatically defeat arbitration. Court appointment and reference powers or institutional default mechanisms can permit continuation, provided notice and due process are respected.

Identify the governing regime, issue compliant notices, pursue a lawful appointment, present evidence and maintain a full record capable of supporting the resulting award.

Principal authorities: Arbitration Act, 1940, sections 8–9 and 20; relevant institutional arbitration rules; Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 where applicable; the signed arbitration agreement.

Avoiding enforcement problems caused by default proceedings

A claimant should arrange that each procedural communication is sent to the last contractually specified address and any other method required by applicable rules. Keep the full delivery history, not merely a list of dates. If a respondent later alleges that no chance to respond existed, the tribunal and enforcing court can examine this record. A properly administered default proceeding is more valuable than an award obtained quickly but vulnerable to challenge because notices were defective. The tribunal should also record why it proceeded despite nonappearance and what evidence was actually considered.