PAKISTAN Law and Practice Contributed by: Abdul Muqtadir Khan, Syed Absar Rahat Rizvi, Hammad Saleem and Zair Zaman Khan, Khan & Arshad
Money Decrees and Arbitral Awards By virtue of Explanation 3, the provisions of Section 44-A are only applicable to money decrees, exclud - ing money decrees in respect of taxes, fines, penal - ties, costs and arbitration awards. Foreign decrees based on an award are excluded from the definition of a decree and are not executable under Section 44-A CPC. However, for the recognition and enforcement of foreign arbitral awards, the provisions of the Conven - tion on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (the “New York Convention”) have been incorporated into domestic law through the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011. 3.2 Variations in Approach to Enforcement of Foreign Judgments Different Routes for Different Judgments The route depends heavily on the type of judgment. Section 44-A direct execution is available only for money decrees from a “superior court” of a gazet - ted reciprocating territory (the United Kingdom, Sin - gapore, Fiji, New Zealand and a handful of others), and it specifically excludes decrees for taxes, fines, penalties and arbitration awards. Non-money judgments, such as injunctions or declar - atory relief, and judgments from non-reciprocating countries, must go through a fresh Section 13 suit. Judgments against a foreign state carry an additional layer of formality, since notice must be transmitted through Pakistan’s Ministry of Foreign Affairs to the respondent state’s foreign ministry. Execution against the assets of a foreign state is fur - ther constrained by the State Immunity Ordinance, 1981, which protects state property from attachment unless the property is in use or intended for use for commercial purposes. 3.3 Categories of Foreign Judgments Not Enforced Section 13 Exceptions A foreign judgment will not be recognised or enforced in Pakistan if it falls within any of the exceptions con - tained in Section 13 of the CPC – namely, where the judgment:
jurisdiction also matters. A defendant who argues the case on the merits will usually be taken to have sub - mitted, as will one who appeals a default judgment on the merits; an appearance made solely to contest jurisdiction, however, does not amount to submission. The Two Enforcement Routes The second big issue is which enforcement route applies – it depends on reciprocity. Under Section 44-A, a decree from a “superior court” in the UK or another gazetted “reciprocating territory” can go straight to a District Court for execution. The decree is then treated like a local decree, and the applicant files with it a certificate from the foreign court showing the extent to which the decree has already been satisfied. If there is no reciprocal arrangement, the creditor must instead file a fresh suit in Pakistan. That suit is based on the foreign judgment, or the original cause of action. Section 13 still applies. Even without formal reciprocity, Pakistani courts sometimes extend comity if the other country would recognise a Pakistani judg - ment in return. Other Recurring Issues A few other issues arise regularly. Interim or non-final judgments cannot be enforced as they do not meet the “conclusive” test. Default judgments can also fail Section 13, unless the creditor proves that the defendant was properly served. Once a judgment is enforced, remittance of the proceeds out of Pakistan requires clearance from the State Bank of Pakistan, which in practice is usually a formality once a Paki - stani court has ordered payment. Treaties and Conventions Pakistan’s treaty commitments in this field are thin. It is not a party to any multilateral convention on the rec - ognition and enforcement of foreign judgments, and has joined neither the Hague Convention on Choice of Court Agreements, 2005 nor the Hague Judgments Convention, 2019. Reciprocity is created one country at a time, through gazette notifications under Section 44-A, not through treaties. Sections 13, 14 and 44-A of the CPC therefore do all the real work, no matter what other treaty relations Pakistan has with a given country.
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