PAKISTAN Law and Practice Contributed by: Abdul Muqtadir Khan, Syed Absar Rahat Rizvi, Hammad Saleem and Zair Zaman Khan, Khan & Arshad
Foreign Awards Foreign arbitral awards falling under the New York Convention are governed by the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011, which gives the High Courts exclusive jurisdiction and confines refusal of enforcement to the narrow grounds in Article V of the Convention, reflecting a pro-enforcement policy that the Supreme Court has endorsed. The High Courts have applied this framework in a pro-enforcement manner. In China International Water and Electric Corporation v National Highway Authority (2023 CLD 1400), the Islamabad High Court recognised a foreign ICC award, holding that enforcement may be refused only on the narrow Article V grounds and that a Paki - stani court cannot set aside a foreign award, that power resting with courts of the seat of arbitration. A residual category of Geneva Convention awards, from states party to the Geneva Convention of 1927 but not the New York Convention, is governed by the Arbitration (Protocol and Convention) Act, 1937. Investment Awards and Other Issues Additional legal issues may arise regarding: • limitation; • the authenticity and certification of the award and arbitration agreement; • whether the award falls within the scope of the relevant statutory regime; and • whether the party seeking enforcement has com - plied with procedural requirements before the Pakistani courts. In the case of ICSID investment awards, enforcement is governed separately by the Arbitration (Interna - tional Investment Disputes) Act, 2011, and the prin - cipal issues concern registration and enforcement of the award in accordance with Pakistan’s obligations under the ICSID Convention. Lastly, another issue that could surface is whether interim awards qualify as enforceable awards under the local laws, as they do not make any distinction between interim and final awards. The local courts have in some cases enforced interim awards, holding that under the circumstances the award was final and binding on the parties.
• that it is founded on an incorrect view of interna - tional law or a refusal to recognise • Pakistani law where such law was applicable; or • that it sustains a claim founded on a breach of any law in force in Pakistan or is otherwise contrary to Pakistani public policy. In the case of judgments sought to be executed under Section 44-A of the CPC, the District Court may refuse enforcement if any of the exceptions set out in Section 13 CPC are established. In addition, the judgment- debtor may raise any applicable limitation defence under the Limitation Act, 1908, where enforcement proceedings or a fresh suit have not been commenced within the prescribed limitation period. Orders passed by the Pakistani court allowing or refusing enforce - ment or execution are subject to the ordinary appel - late remedies available under the CPC, including an appeal to the High Court where provided by law. 4. Arbitral Awards 4.1 Legal Issues Concerning Enforcement of Arbitral Awards The legal issues relating to enforcement of arbitral awards in Pakistan vary depending upon whether the award is domestic, foreign or an investment award. Domestic Awards Domestic awards are governed by the Arbitration Act, 1940, a pre-UNCITRAL statute under which an award does not automatically acquire the status of an exe - cutable decree. The award must first be filed in court and made a “rule of the court” before it becomes an enforceable decree. The principal legal issues include: • the validity of the arbitration agreement; • whether the arbitrator acted within the scope of the reference; • whether there was any misconduct or procedural irregularity by the arbitrator; • whether the award violates principles of natural justice; and • whether the award can be set aside on the grounds provided under the Arbitration Act, 1940.
344 CHAMBERS.COM
Powered by FlippingBook