"ARBITRATION - PAKISTANone statue with the foreign arbitration because of the fact that domestic arbitrationincluded all the different types of arbitration such as the voluntary and compulsoryarbitration.Thus, from the above it can be observed that both AA and APC play a vital role in theenactment of arbitration award in Pakistan, but were these laws sufficient for every kind ofdispute and were they in the position to clarify and satisfy the requirement of all arbitrationproceedings, it is in answer to all these queries and to widen the scope of arbitration to meetall the requirements for implementing the foreign awards the NY convention came it to forcein 1958 of which Pakistan had been one of the former signatories but it is till later of 2011that the nation could not enforce this convention. It is this step by the nation that would bediscussed after the below case study.II.II CASE STUDYFrom the introduction to first chapter we have observed many case studies dealt under theAA-APC acts. Under this section we would briefly discuss case laws that have been in thesimilar stream as the above stated cases.Malik Ali Akbar case, this can is observed to be the first case where the Pakistan courts hadenforced the foreign arbitration agreement. The facts of the case state the circumstanceswhere the District court rejected the plaint in the case on the terms that it lacked the requiredjurisdiction as the contract between the parties clearly specified that any disputes have toobserve under the foreign law that is the Bombay chamber of commerce. It is based on thisoption that the court rejected the plea by overlooking the provisions under section 3 of APCand section 34 of AA, which was considered as one of the erroneous decisions as netherprovisions rejected the plaint on the circumstance of foreign arbitration clause, thus on appealto LHC the decision of the district court was overridden by again in the same erroneous Page 36 ARBITRATION - PAKISTANmanner where the court overlooked the provisions of Section 3 of APC and section 46 of AA,but decided the case under section 34 of AA instead. Although it permitted the stay of suit, it66 was more advisable to apply section 3 of APC instead of the AA provisions.This erroneous decision of the court in applying the provisions of AA instead of section 3 of67 APC had been observed in other succeeding cases such as the M.A. Chowdhury Case, wherethe court instead of applying the required provisions analyzed the validity of the given facts68 69 under the terms of Section 28 of the Contract Act, similarly in the Mercantile Fire Case aswell the court did not apply the provisions of APC in their entire judgment. But after 60 yearsof this erroneous practice the courts realized that they had to implement the provisions ofAPC and not AA for the implementation of foreign arbitration award because, “The provisions of APC contain word ‘shall’ and mandate the legal proceeding whereas theprovisions of AA contain the word ‘may’ where the stay is always at the discretion of thecourt”This observation changed the entire legal dynamics in the enforceability of foreign arbitrationagreements by the courts.Further the dissertation continues with detail note on the situation in the law of Pakistan afterthe enforcement of the NY convention and how this convention enhanced the implementationof the existing arbitration laws in Pakistan rather than overshadowing them.II.III AFTER THE NEW YORK CONVENTIONFrom the above information it can be observed that even though Pakistan was one of theformer signatories of the NY convention it nearly took 47 years for the enactment of this66Same as note 2167M.A. Chowdhury v. Messrs Mitsui O. S. K. Lines Ltd. (1970 PLD Supreme Court 373)68Contract Act (IX of 1872)69Same as note 39 Page 37 ARBITRATION - PAKISTANconvention in the nation. Under this section we would discussing the impact of NYconvention on the decisions of Pakistan court dealing with foreign arbitration agreements.Even though this section would be analyzing the position of laws relating to the foreignarbitral award after the implementation of the NY convention, emphasis is laid more on theacts that have been ratified by GOP for implementing this convention in the nation.The quizzical analysis of the AA bill was subsequently replaced by the provisions of theREFA and AIDA bills which gave effect to the NY convention in Pakistan and haveembodied the provisions related to the same. Pakistan as stated earlier was one of the formersignatories of the NY convention on Recognition and Enforcement of Foreign Award and it isat this time that Pakistan was considered to be one of the foremost nations in the field ofarbitration process. This move is being considered as a good step by the nation for building itimage globally and developing the international arbitration and encouraged internationalinvestments, but the loophole in this enactment is the delay in ratifying the convention. It70 took nearly 47 year for the nation to enforce the bill in 2005. This delay did cause certaindamage in the enforcement of foreign award in the nation but the enforcement of the NYConvention and the International Convention for Settling Investment disputes in transnationaltransactions has reflected the commitment of the nation towards the development of theregime of arbitration in the nation to cope with the international expectations and71 developments.The implementation of the NY convention was delayed in Pakistan till the year 2005, it wasduring this year that through the REFA ordinance that the nation ratified the compulsoryimplementation of this convention for enforcement of foreign award. In addition to thisconvention a temporary legislation on ICSID was promulgated in the year 2006. Though they70Rizwan Hussain, International Arbitration in Pakistan, Key Law Reports, Lahore Journal, p. no. 3; http://ssrn.com/abstract=2597551 71Same as note 60 Page 38 ARBITRATION - PAKISTANwere implemented as temporary legislations, the importance of these legislations increased72 with the enforcement of these two conventions in the Parliament through an Act in 2011.The REFA act of 2011 was enforced with intention to repeal the provisions of APC andimplement the provisions of the NY convention. Even though this act was brought with themotive to overcome the pitfalls of APC, it has its own limitation when it comes to theenforcement of the award. This act is not applicable to the enforcement of the foreign awardsbefore its commencement that is it cannot repeal the awards that have already been decidedbefore 2011 and under the provisions of section 2 of APC. Additionally, an award which doesnot satisfy the provisions of the REFA section 10 it can still be considered as a foreign awardunder the provisions of APC if it fulfills the provisions of section 2 of APC.The acts of REFA and AIDA were primarily implemented in Pakistan with the view toimprove the standards of arbitration and enforcement of foreign award in this nation andadditionally, implement the provisions of the NY convention. In the section we would bemainly concentrating to understand those two acts that have been enacted in Pakistan such73 that the provisions stated in the NY convention have been met.The contradicting point here is the unclear approach of Pakistan in still upholding theprovisions of the APC even after the implementation of the convention. It was not still clearas to why the act still existed when the many nations have opted to resolve their issuesthrough the NY convention. It was not clear why still the provisions of the GenevaConvention and Protocol existed in the nation because in comparison to the NY conventionbecause the number of states that have signed are more in NY convention in comparison with74 the Geneva protocol or convention.72Same as note 7073Same as note 17 p. no. 39-4074 Statue of Protocol:Page 39 ARBITRATION - PAKISTANBased on the above explanation it can be presumed that there are two categories exist in the75 nation after the implementation of NY convention for the enforcement of the foreign award.? Enforcement of the foreign award under the REFA provisions? Enforcement of the foreign award under APC provisionsThe propagation of the REFA expanded the scope of arbitration in the nation. It gave theHigh Court the power to adjudicate and settle all the foreign award related cases as per theprovisions of NY convention and also excludes the application of AA in the matters that havebeen governed under the provisions of REFA.The provisions of REFA have been framed in a way that they not only coordinate with theprovisions of the NY convention but also not override the other laws of the nation. This actwas mainly implemented with the expectation that it enhances the position of arbitration inthe nation on the international and national front rather than diminish the position of the76 arbitration process in the nation.The provisions of the REFA Act were framed in a manner that they are in pursuant to thearticles under the NY convention such as the privileges given to the court under the stay ofproceedings are as per article II of the convention which state that the courts are required tofollow the procedure and exercise those powers as per the provisions of CPC 1908 when theparties are advised to resolve their disputes through the process of arbitration.Enforcement of Foreign Arbitration Agreement:Even though the act of 2007 does not provide proper definition regarding the foreignarbitration agreement, the provisions under section 3(2) of the act provides the parties the75Statue of NY Convention: http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention/status.html76Ibid p .no 40 Page 40 "