"ARBITRATION - PAKISTANlaws of Pakistan and that the parties have also agreed that there would be no application ofAPC due to the provisions of section 9 then they awards under such conditions are to beimplied under AA. Thus, it can be noted that even if the parties are not from Pakistan theforeign arbitral agreement can still be enforced based on the consideration that the partiesagree to decide their disputes according to the laws of this nation.Many foreign awards that have been placed for decision before the Pakistan Courts have beenenacted under the APC 1937, another additional decision to support this argument is the 199938 decision given by the court of Sindh in A. Meredith Janes Co. Ltd v Crescent Board Ltd.where the Judge observed that if the nation has to earn certain respect in the commercialworld it has to honor the trans-national commercial agreement through arbitration and notthrough the judicial process that may delay the procedure or execution of such agreements orany official or quasi official decisions that have been passed in the same course.It can be understood from the above case laws that the Pakistani courts have tried everyopportunity in supporting the enactment of the foreign award under the provisions of APC,1937 and the Courts of suspended any challenges or objections towards such decisions by thePakistani defendant. But in situations where the objection made has a reasonable argumentand the defect is detected on the face of the award then the Court have upheld the objectionand declined the execution of such awards.However, the courts have also had situation where they have to enforce and accept the awardsthat have been implemented under the Rule of Arbitration by the ICC and the differentinternational bodies of similar nature, here again the courts have succeeded by showingsensitivity and respectability towards the international dimension of such awards as discussedunder the case above decided by the court of Sindh.381999 CLC 437, 441 Page 21 ARBITRATION - PAKISTANFurthermore, to the above stated cases there are certain other cases such as the Mercantile39 40 41 42 Fire Case, Eckhardt Case, Avari Hotels case and Meincke Case where the courtsobserved that implication of foreign arbitration is inconvenient to the parties to the contractbase on the provisions of the agreement because the convenience of the parties and evidencesto the parties is very essential and in the given case laws the parties to the contract have tosurrender their right to avail foreign arbitration under Section 34 of AA where theconvenience of the parties is taken into consideration.Thus, after detailed discussion on different case studies explaining the relation of AA-APCand the execution of foreign award in Pakistan in different scenarios we move further indiscussing the next topic on the situations when a foreign arbitral award and agreement canbe filed and enforced in Pakistan.I.III WHEN A FOREIGN ARBITRAL AWARD CAN BE FILED AND ENFORCEDAs we move further in our discussion on execution of foreign arbitration award under the NYconvention it is very essential that we first understand the different instances when such anaward can be filed and enforced in this nation. Under this section we would be discussing thedifferent situations on enforcing the foreign award in the nation. The most important thing to consider before beginning the discussion is that there is no clearand precise rule as to the procedures to be followed while filing the foreign award such as thetime limit while filling the award. The limitations of time on filing the suit and othergovernment procedures have been governed by the provisions of the Limitation Act (IX of1908). Later, this issue was made clear through the Petrocon Case, where the Lahore HighCourt clearly states that the limitation of ninety days for filing for the foreign award under39Messrs Mercantile Fire & General Insurance Co. Pakistan Ltd. v. Messrs Arcepey ShippingCo. USA 1978PLD Karachi 27340Same as note 2341Avari Hotels Ltd. v. Hilton International Company 1985 PLD Karachi 44542Messrs Meincke Food Processing Equipment v. Messrs Danish Butter Cookies 1992 CLC Karachi 1132 Page 22 ARBITRATION - PAKISTANsection 178 of the Limitation Act is applicable to all the arbitrations recognized under AA43 and it is not applicable to foreign awards filed under APC.Further confirmation on the above stated judgment of LHC was made by the Sindh HighCourt in the famous Cogetex Case which clearly states that any application for foreign awardmade under the provisions of APC is considered to be a suit but does not fall under the termsof Section 178 of the Limitation Act which specifies the time limit for filing of the foreignaward. Thus, based on these grounds the court stated that any foreign award that is filedunder the provisions of APC such suit would fall under the general provisions of Article 12044 of the Limitation Act where the limitation period is limited to 6 years.As we understood that for filing an foreign award there are no specific limitation if filedunder APC as we have under litigation suits the dissertation will further discuss on the threeimportant situations which explain when a foreign award can be enforced in Pakistan. Themost important result of the arbitration process is the award, but the most difficult part mayalso be the implementation and execution of this award, because due to its voluntary naturethe losing party has the option to opt out of the award enforced on them and in this situationthe winning party has to invoke external authority for enforcing of this award strictly.Additionally, under this mechanism both the parties have the option to mutually opt theprocedure and the law that would be governing their contract while resolving disputes that iseither domestic or foreign arbitration, but the important aspect is that award declared underthis procedure have to be accepted and sealed by the domestic court where the award is to beenforced. In Pakistan, it is very essential that for enforcing the foreign award it has to berecognized under any one of the three specified situations.43Same as note 2044Cogetex S.A. v Mayfair Spinning Mills (Public Ltd.) (2004 CLD Karachi 1023) Page 23 ARBITRATION - PAKISTAN45 A. A foreign award declared under the prerequisites of APC:In Pakistan it is very essential that to recognize a foreign award it is very essential thatthe award is being recognized under the provisions of APC. However, this rule has anexception under section 9(b) of APC which states that if the arbitration agreement isgoverned under the laws of Pakistan then the provisions under APC are not applicableand the foreign award declared under such situations is considered to be a domestic46 award. Whereas, on the contrary Jillani Anees commented that any award that isconcluded based on the foreign agreement is declared to be foreign award irrespectiveof the fact that it is rendered under the Pakistan law as per section 2 of APC.This observation has been given a new approach through the decision of SHC inYangtze case where it explained that foreign arbitration is that mechanism whereforeign nationals are involved, the agreement is governed and declared by foreignlaws and arbitrators on a foreign land. SHC in different case laws discussed in abovesection clarified that provisions of APC are applicable to foreign award if both theparties are from Pakistan and also to the domestic award if it satisfies the provisionsof Section 2 and 9(b) of APC.47 Additionally, under the A. Meredith Jones case SHC précised that for enforcing theforeign award in Pakistan it is very essential that the following requirements are met:o The validity of the arbitration agreement under the law it is governedo Declared by the arbitration tribunal that has been formed as per the provisionsof the arbitration agreement or as agreed by the partieso The procedure for declaring the award was clearly made with conformity ofthe laws governing it45Ralli Brothers & Coney Ltd. v Muhammad Amin Muhammad Bashir Ltd. (1987 CLC Karachi 83), para (h)46Same as note 34, p. 92947A. Meredith Jones & co. through Attorney v. Usman Textile Mills Ltd. (2002 CLD Karachi 1121) Page 24 ARBITRATION - PAKISTANo The award is final and no obligations can be made against it in the country ithas been declaredo The award must be declared as per the procedures and provisions recognizedby the Pakistan lawo The execution of the award should not hinder the public policy or not becontrary with the Pakistan lawso The court also declared that party challenging the execution of the awardshould satisfy the provisions stated under section 7(2) of APC such as, theparty has to prove that the award is being set aside or that the award is beyondthe scope of arbitration or the question of arbitration has not be judgedproperly or that the arbitration did not give the offended party the option toexplain themselves properly and etc.,Also, the court made it clear that they would not interfere nor scrutinize thequality of the evidences that have been adduced at the foreign arbitration by theparties. This view had been observed in all the cases that have been discussedabove.48 B. A domestic award declared under the prerequisites of AA:An arbitrational procedure conducted as per the provisions stated under AA andaward declared through such proceeding is observed as domestic award, but the lawsobserved by the Pakistan courts clearly mention that for the execution of the awardthe nationality of the award is not essential that is to state that the description of theaward whether as a domestic award or as a foreign award based on the venue ofarbitral proceeding.48Messrs Jugotekstil Impex v Messrs Shams Textile Mills Ltd. (1990 MLD Karachi 857) Page 25 "