Updated: Tuesday October 11, 2016/AthThulatha
Muharram 10, 1438/Mangalavara
Asvina 19, 1938, at 12:43:05 PM
ACT NO. XVll of 2011
An Act to provide for the recognition and
enforcement of arbitration agreements and foreign arbitral awards
WHEREAS,
WHEREAS, it is expedient to provide for the
recognition and enforcement of arbitration agreements and foreign arbitral
awards pursuant to me said Convention and for matters connected therewith;
It is hereby enacted as follows:---
1. Short title, extent, application and commencement.___(1)
This Act may be called the Recognition and Enforcement (Arbitration Agreements
and Foreign Arbitral Awards) Act, 2011.
(2) It extends to the whole of
(3) It shall apply to arbitration agreements
made before, on or after the date of commencement of this Act.
(4) It shall not apply to foreign arbitral
awards made before the 14th day of July, 2005.
(5) It shall come into force at once.
2. Definitions.-In this Act, unless there is anything
repugnant in the subject or context,---
(a) “Article”
means an Article of Convention;
(b) “
(c) “Convention”
means the United Nations Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, done at
(d) “Court”
means a High Court and such other superior court in Pakistan as may be notified
by the Federal Government in the official Gazette; and
(e) “foreign
arbitral award” means a foreign arbitral award made in a
3. Jurisdiction of Court.___(1)
Notwithstanding anything contained in any other law for the time being in
force, the Court shall exercise exclusive jurisdiction to adjudicate and settle
matters related to or arising from this Act.
(2) An application to stay legal proceedings
pursuant to the provisions of Article II of the Convention may be filed in the
Court, in which the legal proceedings are pending.
(3) In the exercise of its jurisdiction, the
Court shall,---
(a) follow
the procedure as nearly as may be provided for the Code of Civil Procedure, 1908
(Act V of 1908); and
(b) have
all the powers vested in a civil court under the Code of Civil Procedure, 1908
(Act V of 1908).
4. Enforcement of arbitration agreements.—(1) A party to an arbitration agreement
against whom legal proceedings have been brought in respect of a matter which
is covered by the arbitration agreement may, upon notice to the other party to
the proceedings, apply to the court in which the proceedings have been brought
to stay the proceedings in so far as they concern that matter.
(2) On an application under sub-section (1),
the court shall refer the parties to arbitration, unless it finds that the
arbitration agreement is null and void, in operative or incapable of being
performed.
5. Furnishing of documents.____(1)
The party applying for recognition and enforcement of foreign arbitral award
under this Act shall, at the time of the application, furnish documents to the
Court in accordance with Article IV of the Convention.
6. Enforcement of foreign arbitral award.-(1) Unless the Court. pursuant to section
7, refuses the application seeking recognition and enforcement of a foreign
arbitral award, the Court shall recognise and enforce the award in the same
manner as a judgment or order of a court in Pakistan.
(2) A foreign arbitral award which is
enforceable under this Act, shall be treated as binding for all purposes on the
persons as between whom it was made, and may accordingly be relied on by any of
those persons by way of defence, set off or otherwise in any legal proceedings
in Pakistan.
7. Unenforceable foreign arbitral awards.____
The recognition and enforcement of a foreign arbitral award shall not be
refused except in accordance with Article V of the Convention.
8. Inconsistency.____In the event of any inconsistency between
this Act and the Convention, the Convention shall prevail to the extent of the
inconsistency.
9. Powers to make Rules.- The Federal Government may, by notification
in the official Gazette, make rules to carry out the purposes of this Act.
10. Repeal and saving.__
(1) The Arbitration (Protocol and Convention) Act, 1937 (VI of
1937) (hereinafter in this section referred to as “the Act”) is hereby
repealed.
(2) Notwithstanding the repeal of the Act,
it shall continue to have effect in relation to foreign arbitral awards made,---
(a) before
the date of commencement of this Act; and
(b) within
the meaning of section 2 of the Act which are not foreign arbitral awards
within the meaning of section 2 of this Act.
SCHEDULE
[See Section 2 (a)]
CONVENTION ON THE RECOGNITION AND
ENFORCEMENT OF FOREIGN ARBITRAL AWARDS
Done at
Entry into force: 7 June, 1959
ARTICLE I
1. This Convention shall apply to the
recognition and enforcement of arbitral awards made in the territory or a State
other than the State where the recognition and enforcement of such awards are
sought, and arising out of differences between persons, whether physical or
legal. It shall also apply to arbitral awards not considered as domestic awards
in the State where their recognition and enforcement are sought.
2. The term “arbitral awards” shall include
not only awards made by arbitrators appointed for each case but also those made
by permanent arbitral bodies to which the parties have submitted.
3. When signing, ratifying or acceding to
this Convention, or notifying extension under article X hereof, any State may
on the basis of reciprocity declare that it will apply the Convention to the
recognition and enforcement of awards made only in the territory of another
ARTICLE II
1. Each Contracting State shall recognize an
agreement in writing under which the parties undertake to submit to arbitration
all or any differences which have arisen or which may arise between them in
respect of defined legal relationship, whether contractual or not, concerning a
subject matter capable of settlement by arbitration.
2. The term “agreement in writing” shall
include an arbitral clause in a contract or an arbitration agreement, signed by
the parties or contained in an exchange of letters or telegrams.
3. The court of a Contracting State, when
seized of an action in a matter in respect of which the parties have made an
agreement within the meaning of this article shall, at the request of one of
the parties, refer the parties to arbitration, unless it finds that the said
agreement is null and void, inoperative or incapable of being performed.
ARTICLE III
Each
ARTICLE IV
1. To obtain the recognition and enforcement
mentioned in the preceding article, the party applying for recognition and
enforcement shall, at the time of the application, supply:---
(a) The
duly authenticated original award or a duly certified copy thereof;
(b) The
original agreement referred to in article II or a duly certified copy thereof.
2. If the said award or agreement is not
made in an official language of the country in which the award is relied upon,
the party applying for recognition and enforcement of the award shall produce a
translation of these documents into such language. The translation shall be
certified by an official or sworn translator or by a diplomatic or consular
agent.
ARTICLE V
1. Recognition and enforcement of the award
may be refused, at the request of the party against whom it is invoked, only if
that party furnishes to the competent authority where the recognition and enforcement
is sought. Proof that:---
(a) The
parties to the agreement referred to in article II were, under the law
applicable to them, under some incapacity, or the said agreement is not valid
under the law to which the parties have subjected it or, failing any indication
thereon, under the law of the country where the award was made; or
(b) The
party against whom the award is invoked was not given proper notice of the
appointment of the arbitrator or of the arbitration proceedings or was
otherwise unable to present his case; or
(c) The
award deals with a difference not contemplated by or not falling within the
terms of the submission to arbitration, or it contains decisions on matters beyond
the scope of the submission to arbitration, provided that, if the decisions on
mailers submitted to arbitration, can be separated from those not so submitted,
that part of the award which contains decisions on matters submitted to
arbitration may be recognized and enforced; or
(d) The
composition of the arbitral authority or the arbitral procedure was not in
accordance with the agreement of the parties, or, failing such agreement, was
not in accordance with the law of the country where the arbitration took place;
or
(e) The
award has not yet become binding on the parties, or has been set aside or
suspended by a competent authority If the country in which, or under the law of
which, that award was made.
2. Recognition and enforcement of an
arbitral award may also be refused if the competent authority in the country
where recognition and enforcement is sought finds that:---
(a) The
subject matter of the difference is not capable of settlement by arbitration
under the law of that country; or
(b) The
recognition or enforcement of the award would be contrary to the public policy
of that country.
ARTICLE VI
If an application for the setting, aside or
suspension of the award has been made to a competent authority referred to in
article V (1) (e), the authority before which the award is sought to be relied
upon may, if it considers it proper, adjourn the decision on the enforcement of
the award and may also, on the application of the party claiming enforcement of
the award order the other party to give suitable security.
ARTICLE VII
1. The provisions of the present Convention
shall not affect the validity of multilateral or bilateral agreements
concerning the recognition and enforcement of arbitral awards entered into by
the Contracting States nor deprive any interested party of any right he may
have to avail himself of an arbitral award in the manner and to the extent
allowed by the law or the treaties of the country where such award is sought to
be relied upon.
2. The
ARTICLE VIII
1. This Convention shall be open-until 31st
December 1958 for signature on behalf of any Member of the United Nations and
also on behalf of any other State which is or hereafter becomes a member of any
specialized agency of the United Nations, or which is or hereafter becomes a party
to the Statute of the International Court of Justice, or any other State to which an invitation has been addressed by the General
Assembly of the United Nations.
2. This Convention shall be ratified and the
instrument of ratification shall be deposited with the Secretary-General of the
United Nations.
ARTICLE IX
1. This Convention shall be open for
accession to all States referred to in article VIII.
2. Accession shall be effected by the
deposit of an instrument of accession with the Secretary-General of the United
Nations.
ARTICLE X
1. Any State may, at the time of signature,
ratification or accession declare that this Convention shall extent to all or
any of the territories for the international relations of which it is
responsible. Such a declaration shall take effect when the Convention enters
into force for the State concerned.
2. At any time there after any such
extension shall be made by notification addressed to the Secretary-General of
the United Nations and shall take effect as from the ninetieth day after the
day of receipt by the Secretary-General of the United Nations of this
notification, or as from the date of entry into force of the Convention for the
State concerned, whichever is the later.
3. With respect to those territories to
which this Convention is not extended at the time of signature, ratification or
accession, each state concerned shall consider the possibility of taking the
necessary steps in order to extern the application of this Convention to such
territories, subject, where necessary for Constitutional reasons, to the
consent of the Governments of such territories.
ARTICLE XI
In the case of a federal or non-unitary
State, the following provisions shall apply:---
(a) With respect to those articles of this
Convention that come within the legislative jurisdiction of the federal
authority, the obligations of the federal Government shall to this extent be
the same as those of Contracting States which are not federal States;
(b) With respect to those articles of this
Convention that come within the legislative jurisdiction of constituent states
or provinces which are not, under the constitutional system of the federation,
bound to take legislative action, the federal Government shall bring such
articles with a favourable recommendation to the notice of the appropriate
authorities of constituent states or provinces at the earliest possible moment;
(c) A Federal State Party to this Convention
shall, at the request of any other Contracting State transmitted through the
Secretary-General of the United Nations, supply a statement of the law and
practice of the federation and its constituent units in regard to any
particular provision of this Convention, showing the extent to which effect has
been given to that provision by legislative or other action.
ARTICLE XII
1. This Convention shall come into force on
the ninetieth day following the date of deposit of the third instrument of
ratification or accession.
2. For each State ratifying or acceding to
this Convention after the deposit of the third instrument of ratification or
accession this Convention shall enter into force on the ninetieth day after
deposit by such Slate of its instrument of ratification or accession.
ARTICLE XIII
1. Any Contracting State may denounce this
Convention by a written notification to the Secretary-General of the United
Nations Denunciation shall taken effect one year after the date of receipt of
the notification by the Secretary-General.
2. Any State which has made a declaration or
notification under Article X may, at any time thereafter, by notification to
the Secretary-General of the United Nations, declare that this Convention shall
cease to extend to the territory concerned one year after the date of the
receipt of the notification by the Secretary-General.
3. This Convention shall continue to be
applicable to arbitral awards in respect of which recognition or enforcement
proceedings have been instituted before the denunciation takes effect.
ARTICLE XIV
A
ARTICLE XV
The Secretary-General of the United Nations
shall notify the States contemplated in Article VIII of the following:---
(a)
signatures and ratifications in accordance with Article VIII;
(b)
accessions in accordance with Article IX;
(c) declarations
and notifications under Articles I, X and XI;
(d) the
date upon which this Convention enters into force in accordance with Article
XII; and
(e) denunciations and notifications in accordance with Article
XIII.
ARTICLE XVI
1. This Convention, of which the Chinese,
English, French, Russian and Spanish texts shall be equally authentic, shall be
deposited in the archives of the United Nations.
2. The Secretary-General of the United
Nations shall transmit a certified copy of the Convention to the States
contemplated in Article VIII.
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