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( Source of the document: ICC Digital Library )
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
2. Date of entry into force of the New York Convention
12 October 2005.
(Sources: The Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Ordinance 2005 (Ordinance No. VIII of 2005) published in The Gazette of Pakistan, Extraordinary, 14 July 2005, Pt I, p. 645; The Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 (Act No. XVII of 2011) ('REA') published in The Gazette of Pakistan, Extraordinary, 19 July 2011, Pt I, p. 373.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(b) commercial relationships?
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
No precedents are available in Pakistan and the REA does not specify what kinds of awards will not be considered as domestic under Pakistani law. It could be argued that even awards rendered within Pakistan may fall within the scope of the REA; however, the phrase remains to be interpreted by Pakistani courts.
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act 2011 (REA).
Note: REA, s. 9, allows the federal government to make rules to fulfil the purposes of the REA, through notification in the Gazette. No such rules have yet been made.
C. Limitation periods (time limits)
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
Three (3) years, as from the date of the award.
No period of limitation has been fixed for enforcement of a foreign award under the First Schedule to the Pakistan Limitation Act 1908 and the REA, so the period of limitation is governed by the Limitation Act, Art. 181.
(Source: Limitation Act 1908, Art. 181, which provides for a period of limitation of 3 years from the time when the right to apply accrues in the case of applications for which no period of limitation is provided.)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
High Court and such other superior court in Pakistan as may be notified by the federal government in the Gazette.
(Source: REA, ss. 2 and 3.)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?
For a court to have jurisdiction over recognition and enforcement of foreign awards, the assets of the respondent must be situated, or the respondent must actually and voluntarily reside or carry on business or personally work for gain within its territorial jurisdiction.
(Source: Code of Civil Procedure 1908 ('CPC'), ss. 16 & 20.)
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
Inter partes proceedings.
(Source: CPC, Order 5 Rule 1.)
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
(b) How many levels of appeal or recourse are available against this decision?
(Sources: Law Reforms Ordinance 1972, s. 3 ('(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a single Judge of that Court in the exercise of its original civil jurisdiction.'); Constitution of Pakistan 1973, Art. 185 ('Appellate jurisdiction of Supreme Court. (1) Subject to this Article the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences of a High Court. (2) An appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence of a High Court . . . (d) if the amount or value of the subject matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of Parliament and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or find order of the Court immediately below ; or (e) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below . . . (3) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal.').)
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?
From the date on which the application for recognition and enforcement is granted. REA, s. 6, requires the High Court to recognize and enforce an arbitral award in the same manner as a first judgment of the High Court. An appeal against the first judgment of the High Court does not affect execution of the first judgment to obtain assets unless the judgment debtor has obtained a stay of proceedings from the appellate court.
(Source: CPC, Order 41 Rule 5.)
E. Evidence required
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?
As required under the New York Convention, Art. IV, namely: (i) the duly authenticated original award or a duly certified copy thereof; (ii) the original agreement, which shall include an arbitral clause or the arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.
(Source: REA, s. 5.)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
Yes. The entire document must be provided.
(Source: general practice; no specific legal source.)
(c) Are originals or duly certified copies required?
The original or a duly certified copy is required.
(Sources: REA, s. 5; New York Convention, Art. IV.)
(d) How many originals or duly certified copies are required?
One. In all legal proceedings the court requires one original or one duly certified copy of the relevant document.
(e) Does the authority or court keep the originals that are filed?
(Source: CPC, Order 13 Rule 9 ('(1) Any person, whether a party to the suit or not, desirous of receiving back any document produced by him in the suit and placed on the record shall, unless the document is impounded under rule 8, be entitled to receive back the same, (a) where the suit is one in which an appeal is not allowed, when the suit has been disposed of, and (b) where the suit is one in which an appeal is allowed, when the Court is satisfied that the time for preferring an appeal has elapsed and that no appeal has been preferred or, if an appeal has been preferred, when the appeal has been disposed of: Provided that a document may be returned at any time earlier than that prescribed by this rule if the person applying therefor delivers to the proper officer a certified copy to be substituted for the original and undertakes to produce the original if required to do so: Provided also that no document shall be returned which, by force of the decree, has become wholly void or useless. (2) On the return of a document admitted in evidence, a receipt shall be given by the person receiving it.').)
(a) Is it necessary to provide a translation of the documents supplied?
Yes, if they are in a language other than English.
(b) If yes, into what language?
(Sources: Pakistan Constitution, Art. 251; Sind Chief Court Rules, Rule 255.)
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
The translation must be certified by an official translator and attested by the Pakistan diplomatic or consular agent in the country in which the award is rendered.
(Sources: REA, s. 5; general practice.)
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
Full translation of the documents.
F. Stay of enforcement
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
(Source: New York Convention, Art. VI.)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
No precedents available in Pakistan. No statutes have been found providing grounds for a stay of legal proceedings for recognition and enforcement.
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
Yes. The New York Convention, Art. VI, gives the court, when requested by the party seeking enforcement, discretion to require the party resisting enforcement to provide security.
A Pakistani court has the general power to order the provision of security, but the exercise of this power will depend upon the circumstances of the case. No precedents are available in this regard. The court may take into consideration the principles laid down in CPC, Order 38 Rule 5.
(Source: CPC, Order 38 Rule 5 ('(1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. (2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof. (3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.').)
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
Yes, the documents form part of the public record. Although no precedent exists, a party to the proceedings may file an application to preserve confidentiality under CPC, s. 151. The result cannot be predicted.
(Source: CPC, s. 151 ('Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.').)
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
The hearings are not confidential. A party to the proceedings may request the court to conduct the proceedings behind closed doors and the court will most likely accede to the request.
(Source: CPC, s. 151.)
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?
Only judgments ruling on an important question of law of general public interest and approved for reporting by the judge are published. An application to remove the names of the parties or avoid publication of confidential information may be made to the court under CPC, s. 151; it is likely to be granted if there are sufficient reasons.
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
A party can obtain recognition and enforcement of an interim or partial foreign award if it finally determines substantive issues in the arbitration proceedings.
(Source: no specific legal source, principle derived from Arbitration Act 1940, s. 27.)
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
A party can obtain recognition and enforcement of non-monetary relief in foreign arbitral awards when there is an order in the award requiring a party to deliver specific property.
(Source: CPC, Order 21, Rules 31, 35 and 36. ('Rule 31. Decree for specific moveable property. (1) Where the decree is for any specific moveable, or for any share in a specific moveable, it may be executed by the seizure, if practicable, of the moveable or share, and by the delivery thereof to the party to whom it has been adjudged, or to such person as he appoints to receive delivery on his behalf, or by the detention in the civil prison of the judgmentdebtor, or by the attachment of his property, or by both. (2) Where any attachment under subrule (1) has remained in force for six months, if the judgmentdebtor has not obeyed the decree and the decreeholder has applied to have the attached property sold, such property may be sold, and out of the proceeds the Court may award to the decreeholder, in cases where any amount has been fixed by the decree to be paid as an alternative to delivery of moveable property, such amount, and, in other cases, such compensation as it thinks fit, and shall pay the balance (if any) to the judgmentdebtor on his application. (3) Where the judgmentdebtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of six months from the date of the attachment, no application to have the property sold has been made, or, if made, has been refused, the attachment shall cease.' 'Rule 35. Decree for immoveable property. (1) Where a decree is for the delivery of any immoveable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property. (2) Where a decree is for the joint possession of immoveable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree. (3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decreeholder in possession.' 'Rule 36. Decree for delivery of immoveable property when in occupancy of tenant. Where a decree is for the delivery of any immoveable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property.').)
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
A party may obtain recognition and enforcement of only part of the relief granted in a foreign award: (i) where the award deals with a dispute not contemplated by or not falling within the terms of the arbitration agreement, or (ii) if the award contains decisions on matters beyond the scope of the agreement, and such irregular provisions can be severed from the remainder of the award which may then be enforced.
(Source: Messers A. Z. Company v. Messers S. Maula Bukhsh Muhammad Bashir, PLD 1965 Supreme Court 505, 517.)
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
No precedent. The opening paragraph of Art. V(1) states that a court 'may' refuse to recognize and enforce an award if the grounds set out in that paragraph are proved. However, it is unlikely that a Pakistani court would exercise such discretion to enforce the award where those grounds have been proved. Accordingly, an award which has been set aside by the competent authority referred to in Art. V(1)(e) is unlikely to be enforced.
(Source: no specific legal provision except general principles of arbitration.)
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
The applicant must identify the assets that are to be attached and/or sold in execution of the award.
S. Ahmed Sarwana