Last Updated: Monday June 11, 2007
APPENDIX
THE ARBITRATION
(PROTOCOL AND CONVENTION) ACT, 1937
(ACT VI o 1937)
An Act to make certain further provisions respecting the law of
arbitration in
Whereas India
was a State signatory to the Protocol on Arbitration Clauses set forth in the
First Schedule, and to the Convention on the Execution of Foreign Arbitral
Awards set forth in the Second Schedule, subject in each case to a reservation
of the right to limit its obligations in respect thereof contracts which are
considered as commercial under the law in force in Pakistan.
And whereas it
is expedient, for the purpose of giving effect to the said Protocol and of
enabling the said Convention to become operative in
1. Short
title, extent and operation.—(l) This Act may be called the Arbitration
(Protocol and Convention) Act, 1937.
(2) It
extends to the whole of
(3) The provisions of this
Act, except this section, shall have effect only from such date as the Central
Government may, by notification in the official Gazette, appoint in this
behalf, and the Central Government may appoint different dates for the coming
into effect of different povisions of the Act.
2. Interpretation.—In
this Act “foreign award” means an award on differences relating to matters
considered as commercial under the law in force in
(a) in pursuance of an
agreement for arbitration to which the protocol set forth in the first Schedule
applies, and
(b) between persons of whom
one Is subject to the jurisdiction of some one of such Powers as the Central
Government, be1n satisfied that reciprocal provisions have been made, may.. by
notification in the official Gazette, declare to the parties to, the Convention
set forth in the Second Schedule, and of whorn the other is subject to the
jurisdiction of some other of the aforesaid Powers, and
(c) in one of such
territories as the Central Government being satisfied that reciprocal
provisions have been made, may by like notification, declare to be territories
to which’ the said Convention applies,
and for the purposes of this Act
an award shall not be deemed to be final if any proceedings for the purpose of
contesting the validity of the award, are pending in the country in which it
was made.
3. Stay
of proceedings in respect of matters to be referred to arbitration —Notwithstanding
anything contained in the Arbitration Act, 1940 or in the Code of Civil
Procedure, 1908, if, any party to a submission made in pursuance of an
agreement to which the Protocol set forth in the First Schedule as modified by
the reservation subject to which it was signed by India applies, or any person
claiming through or under him, commences any legal proceedings in any Court
against any other party to the submission or any person claiming through or
under him in respect of any matter agreed to be referred, any party to such
legal proceedings may, at any time after appearance and before filing a written
statement or taking other steps the proceedings, apply to the Court to stay the
proceedings: and the Court, unless satisfied that the agreement or arbitration
has become inoperative cannot proceed, or that there is not in fact any dispute
between the parties with regard to the matter agreed to be referred, shall make
an order staying the proceedings.
4. Effect of foreign awards— (1) A foreign
award shall, subject to the provisions of this Act, be enforceable in
(2) Any foreign
award which would be 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 and any references in this Act to enforcing a
foreign award shall be construed as including references to relying on award.
5.
Filing of foreign award in Court.-—(l) Any person interested in a
foreign award may apply to any Court having jurisdiction over the subject
matter of the award that the award be filed in Court.
(2) The
application shall be in writing and shall be
numbered and registered as a suit between the applicant as plaintiff and
the other parties as defendants.
(3) The Court
shall direct notice to be given to the parties to the arbitration, other than
the applicant, requiring them to show cause, within a time specified, why the
award not be filed.
6.
Enforcement of foreign award.—(l) When the Court is satisfied that
the foreign award is enforceable under this Act, the Court shall order the
award to be filed and shall proceed to pronounce judgment according to the
award.
(2) Upon the judgment so pronounced a decree
shall follow, and no appeal shall lie from such decree except in so far as the
decree is in excess of or not in accordance with the award.
7. Conditions for enforcement of foreign
awards.— (1) In order that foreign award may be enforceable under this Act
it must have—
(a) been made in pursuance
of art agreement for arbitration which was valid under the law by which it was
governed,
(b) been made by the
tribunal provided for in the agreement or constitute in manner agreed upon by the parties,
(c) been made in conformity
with the law governing the arbitration procedure,
(d) become final in the country in which it
was made,
(e) been in respect of a matter
which .may lawfully be referred to arbitration under the law of
and the enforcement thereof must
not be contrary to the public policy or the law of
(2) A foreign award shall not be enforceable
under this Act if the Court dealing with the case is satisfied that—
(a) the award has been annulled in the
country in which it was made, or
(b) the party against whom
it is sought to enforce the award was not given notice of the arbitration
proceedings in sufficient time to enable him to present his case, or was under
some legal incapacity and was not property represented, or
(c) the award does not deal
with all the questions referred or contains decisions on matters beyond the
scope of the agreement for arbitration:
Provided that if
the award does not deal with all questions referred the Court may, if it thinks
fit, either postpone the enforcement of the award or order its enforcement
subject to the giving of such security by the person seeking to enforce it as
the Court may think fit.
(3) If a party seeking to resist the
enforcement of a foreign award proves that there is any ground other than the
non-existence of the conditions specified in Cls. (a), (b) and (c) of
subsection (1), or the existence of the conditions specified in Cls. (b) and
(c) of subsection (2), entitling him to contest the validity of the award the
Court may, if it thinks fit, either refuse to enforce the award or adjourn the
hearing until after the expiration of such period as appears to the Court to be
reasonably sufficient to enable that party to take the necessary steps to have
the award annulled by competent tribunal.
8. Evidence
-.(l) The party seeking to enforce a foreign award must produce.
(a) the original award or a
copy thereof duly authenticated in manner required by the law of the country in
which it was made ;
(b) evidence proving that the award has
become final ; and
(c) such evidence. as may be
necessary to prove that the award is a foreign award and that the conditions
mentioned in Cls. (a), (b) and, of subsection (1) of section 7 are satisfied.
(2) Where any document
requiring to be produced under subsection (1) is in a foreign language, the
party seeking to enforce the award shall produce a translation into English
certified as correct by a diplomatic or consular agent of the country to which that party belongs or certified as
correct in such other manner as may be sufficient according to the law in force
in Pakistan.
9. Saving.
—Nothing in this Act shall—
(a) prejudice any rights
which any person would have had of enforcing in Pakistan any award or of
availing himself in Pakistan of any award if this Act had not been passed, or
(b) apply to any award made
on an arbitration agreement governed by
the law of
10. Rule-making powers of the High Court —The High Court may
make rules consistent with this Act as to—
(a) the filing of foreign
award and all proceedings consequent thereon or incidental thereto ;
(b) the which must be
furnished by a party seeking to enforce a foreign award under this Act , and
(c) generally, all proceedings in Court
under this Act.
THE FIRST SCHEDULE
Protocol on Arbitration Clauses
The undersigned,
being duly authorised, declare that they accept, on behalf of the countries
which they represent the following provisions:
1. Each of the Contracting
States recognises the validity of an agreement whether relating to existing or
future differences between parties subject respectively to the jurisdiction of
different contracting States by which the parties to a contract agree to submit
to arbitration all or any in connection with such contract relating to
commercial matters or to any other matter capable of settlement by arbitration,
whether or not the arbitration is to take place in a country to whose
jurisdiction non of the parties is subject.
Each
2.
The arbitral procedure, including the
constitution of the Arbitral Tribunal,
shall be governed by the will of the parties and by the law of the country in
whose territory the arbitration takes
place.
The Contracting
States agree to facilitate all steps in the procedure which require to be taken
in their own territories, in accordance with the provisions of their law governing arbitral
procedure applicable to existing differences.
3. Each Contracting State
undertakes to ensure the execution by its authorities and in accordance with
the provisions of its national laws of arbitral awards made in its own
territory under the preceding articles.
4.
The Tribunals of the Contracting Parties, on
being seized of a dispute regarding a contract made between persons to whom
Art. 1 applies and including an Arbitration Agreement whether referring to
present or future differences which is valid in virtue of the said article and
capable of being carried into effect, shall refer the parties on the
application of either of them to the decision of the Arbitrators.
Such reference
shall not prejudice the competence of the judicial tribunals in case the
agreement or the arbitration cannot proceed or becomes inoperative.
5. The present Protocol,
which shall remain open for signature by all States, shall be ratified. The
ratification shall be deposited as soon as possible with the Secretary-General
of the
6 The present Protocol
will come into force as soon as two ratifications have been deposited.
Thereafter it will take effect, in the case of each
7 The present Protocol may
be denounced by any
8. The Contracting States
may declare that their acceptance of the present Protocol does not include any
or all of the undermentioned territories ; that is to say, their colonies,
overseas possessions or territories, protectorates or the territories over
which they exercise a mandate.
The said States
may subsequently adhere separately on behalf of any territory thus excluded.
The Secretary-General of the
The Contracting
States may also denounce the Protocol separately on behalf of any of the
territories referred to above. Article 7 applies to such denunciation.
THE SECOND SCHEDULE
Convention on the execution
of Arbitral Awards
Art. 1.—In the territories of any
High Contracting Party to which the present Convention applies, an arbitral
award made in pursuance of an agreement, whether elating to existing or future
differences (hereinafter called “a submission to arbitration”) covered by the
Protocol on Arbitration Clauses opened at Geneva on September 24, 1923, shall
be recognised as binding and shall be enforced in accordance with the rules of
the pro-cedure of the territory where the award is relied upon, provided that
the said award has been made in a territory of one of the High Contracting
Parties to which the present Convention applies and between persons who are
subject to the jurisdiction of one of the High Contracting Parties.
To obtain such recognition or
enforcement, it shall, further,. be necessary:
(a) That the award. has been
made in pursuance of a submission to arbitration which is valid under the law
applicable thereto;
(b) that the subject-matter
of the award is capable of settlement by arbitration under the law of the
country in which the award is sought to be relied upon;
(c) that the award has been
made by the Arbitral Tribunal provided for in the submission to arbitration or
constituted in the manner agreed upon by the parties and in conformity with the
law governing the arbitration procedure:
(d) that the award has become
final in the country in which it has been made, in the sense that it will not
be considered as such, if it is open to opposition, appeal or pourvoi en cessation (in the countries
where such forms of procedure exist) or if it is proved that any proceedings
for the purpose of contesting the validity of the award are pending;
(e) that the recognition or
enforcement of the award is not contrary to the public policy or to the
principles of the law of the country in which it is sought to be relied upon..
Art. 2,—Even if the conditions
laid down in Art. 1 hereof are fulfilled, recognition and enforcement of the
award shall be refused if the Court is satisfied :
(a) That the award has been annulled in the
country in which it was made;
(b that the party against
whom it is sought to use the award was not given notice of the arbitration
proceedings in sufficient time to enable him to present his case; or that,
being under a legal incapacity, he was
not properly represented;
(c) that the award does not
deal with the differences contemplated by or falling within the terms of the
submission to arbitration or that it contains decisions on matters beyond the
scope of the submission to arbitration.
If the award
has not covered all the questions submitted to the arbitral tribunal, the competent
authority of the country where recognition or enforcement of the award is
sought can, if it thinks fit, postpone such recognition or enforcement or grant
it subject to such guarantee as that authority may decide.
Art. 3.—If the party against whom the award
has been made proves that, under the law governing the arbitration procedure,
there is a ground, other than the grounds referred to in Art. 1. (b) and (C)
and Art. 2 (b) and (c) entitling him to contest the validity of the award in a
Court of Law, the court may, if it thinks fit, either refuse recognition or
enforcement of the award or adjourn the consideration thereof, giving such
party a reasonable time within which to have the award annulled by the competent tribunal.
Art. 4.—The part relying upon an award or claiming its enforcement
must supply, in particular :
(1) The original award or a
copy thereof duly authenticated, according to the requirements of the law of
the country in which it was made;
(2) documentary or other
evidence to prove that the award has become final, in the sense defined in Art.
1 (d), in the country in which it was made;
(3) when necessary,
documentary o other evidence to prove that the conditions 1aid down in Art. 1,
paragraph 1 and paragraph 2 (a) and (c), have been fulfilled.
A translation of the award and of
the other documents mentioned in this article into the official language of’
the country where the award is sought to be relied upon may be demanded. Such
translation must be certified correct by a diplomatic or consular agent of the
country to which the party who seeks to rely upon the award belongs or by a
sworn translator of the country where the award sought to be relied upon.
Art.. 5.—The provisions of the
above articles shall not deprive any interested party of the right of availing
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.
Art. 6.—The present Convention
applies only to arbitral awards made after the coming into force of the
Protocol on Arbitration Clauses, opened at
Art. 7.—The present Convention,
which will remain open to the signature of all the signatories of the Protocol
of 1923 Arbitration Clauses, shall be ratified.
It may be ratified only on behalf
of those Members of the
Ratification shall be deposited
as soon as possible with the Secretary-General of the
Art. 8.—The present Convention
shall come into force three months after it shall have been ratified on behalf
of two High Contracting Parties. Thereafter, it shall take effect, in the case
of each High Contracting Party, three months after the deposit of the
ratification on its behalf with the Secretary-General of the
Art. 9.—The present Convention
may be denounced on behalf of any Member of the League or
The denunciation shall come into
force only in respect of the. High Contracting Party which shall have notified
it and one year after such notification shall have reached the
Secretary-General of the
The denunciation of the Protocol
on Arbitration Clause shall entail, ipso
facto, the denunciation of the present Convention.
Art. 10.—The present Convention
does not apply to the Colonies, Protectorate or territories under suzerainty or
mandate of ‘any High Contracting Party unless they are specially mentioned.
The application of this
Convention to one or more of such Colonies, Protectorates or territories to
which the Protocol on Arbitration Clauses opened at Geneva on September 24,
1923, applies, can be effected at any time by means of a declaration addressed
to the Secretary-General of the League of Nations by one of the High
Contracting Parties.
Such declaration shall take
effect three months after the deposit thereof.
The High Contracting Parties can
at any time denounce the Convention for all or any of the Colonies,
Protectorates or territories referred to above. Art. 9 hereof applies to such
denunciation.
Art. 11 —A certified copy of the
present Convention shall be transmitted by the Secretary-General of the
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