"ARBITRATION - PAKISTANstates in his work that the only possible recommendation to overcome different difficulties orchallenges for implementing the arbitral award is the successful enforcement of the laws.This simple work helps us in understanding the different conventions and also the needbehind the implementation of these conventions for resolving commercial disputes througharbitration. These conventions have aimed to a greater extent to standardize the procedure ofthe arbitration, which in itself is a challenge. Thus, with the help the study we can explain indetail the challenges and the stages of arbitration in Pakistan for implementing the foreign16 arbitral award.Additionally, we would also be emphasizing the study of Ahmad Ali Ghouri’s Law andPractice of Foreign Arbitration and Enforcement of Foreign Arbitral Awards in Pakistanwhere the author has explained in detail the arbitration proceedings in Pakistan from the legalperspective. The author has focused on explaining the different stages in the implementationof the process of arbitration in the current nation that is from the stage of impreciseprovisions till ratification of the New York Convention in 2010. This literature will help thedissertation in providing in-depth knowledge of the different acts of arbitration enacted by thenation and will grasp the attention of the reader by giving them proper insights on thearbitration laws in Pakistan. He has focused on providing analysis on different regimes of thearbitration acts implemented in Pakistan, such as the Arbitration Act, 1940–the Arbitration(Protocol and Convention) Act, 1937 regime and the relationship of these two acts in theenforcement of the foreign award, followed by the New Recognition and Enforcement(Arbitration Agreement and Foreign Arbitral Awards), Act 2011 and Arbitration16Ijaz Ali Chishti, Enforcement of Foreign Arbitral Award in Pakistan, University of Karachi, July 2012; (accessed on June 19, 2015) Page 11 ARBITRATION - PAKISTAN(International Investment Disputes) Act, 2011 Regimes by focusing on the general schemes17 under this regime and the enforcement of the foreign arbitral award in this regime.Additionally, the literary review that helps in expanding the scope of our dissertation is thework of Zafar Ranjha who in his work opens a fresh approach to the execution of foreignarbitral award i.e. the public policy. Beginning his work with explanation on what isarbitration he continues in explaining how public policy impacts the implementation of the18 foreign award. Based on the given topic on implication of the New York Convention for foreign awards, oneof the supporting research information we would also be dealing for the better analysis of thetopic is the work of Dr. Jamil Shahid in his article Pakistan Arbitration: Towards the Model19 Law who explains the importance on the promulgation of the Arbitration Bill, 2009 statingthat once this bill is propagated as law, it will constitute as one of the effective measures ofthe Pakistan government in implication of the NY convention and building of an effectiveframework for resolving investor disputes in a friendly manner. But the question discussedvast in the article is whether the provisions stated in the bill are as effective as expected, thiswill be discussed in detail in the coming chapters.After understanding in detail the different literature reviews we would be considering for aneffective dissertation we move further in analyzing the methodology through which we wouldbe accessing the required data to support our research.17Ghouri Ali Ahmad,Law and Practice of Foreign Arbitration and Enforcement of Foreign Award in Pakistan, Springer Briefs in Law, p.nos 7-35 (accessed on June 20, 2015)18Same as note 1; (accessed on June 19, 2015)19Dr. Jamil Shahid,Pakistani Arbitration: Towards the Modern Law, Dispute Resolution, The Counsel, Pakistan?s Premier Corporate LawMagazine; http://www.counselpakistan.com/vol-1/dispute-resolution/pakistani-arbitration.php (accessed on June 20, 2015) Page 12 ARBITRATION - PAKISTANRESEARCH METHODOLOGYAfter in-depth research on different literary reviews that help in effective analysis of thedissertation, we continue in understanding the different methodologies that can be followedfor gaining the required information. We would analyze and investigate statisticalinformation and the annual report of International Chamber of Commerce Pakistan for year2010 and 2011. The investigation also deals with different journals, books, articles and caselaws for supporting our argument on the enforcement of award under the Pakistan laws.Additionally, the dissertation would also focus on different case studies, laws and regulationsthat have been implemented for the survival and expansion of arbitration process forresolving commercial disputes. This would help in discussing a dissertation on a grand scale.20 21 22 The case laws such as the Petroleum Case, Malik Ali Akbar Case, Mercantile Fire Case,23 Eckhardt case etc., that would be discussed in detail in the coming chapters help inunderstanding different scenarios on enforcement of the arbitral award such as awarddeclared by courts within Pakistan and outside Pakistan with single arbitrator or co- arbitrators. The data analyzed include the ICC Pakistan annual reports that provide in detailinformation on the different issues and recommendations for establishing and effectivefunctioning of the arbitration practice in the nation.Further approach on collecting the essential information for the dissertation is the statisticaldata and estimations which will help in understanding the current position and success ratioof arbitration in Pakistan. The annual reports of 2010 it can be observed through investigationthat measures have been taken for enactment of the New York Convention in the nation butits implementation is still awaiting a green signal from the General Assembly. Thus, in themeantime, the courts have been implementing the 2005 arbitration rules as an ordinance.20Petrocon (Pvt.) Ltd. V. Hyderabad Development Authority, Hyderabad (1990 MLD Karachi 1675), para.(a).21Malik Ali Akbar v. Metro Goldwyn Mayer India Ltd(1952 PLD Lahore 249)22Messrs Mercantile Fire and General Insurance Co. of Pakistan Ltd. Karachi v Messrs Arcepey Shipping Company USA (1978 PLDKarachi 273)23Eckhardt & Com Marine GMBH, West Germany v Mohammad Hanif (1986 PLD Karachi 138), para (d) Page 13 ARBITRATION - PAKISTANEven though, being part of the New York Convention in 1958, the nation successfully ratifiedenforcement of foreign awards under this convention recently in 2011. Statistical data statethat the percentage of cases filed under arbitration has increased to 40% in these years.Pakistan can be observed to have taken effective measures to improve the standards of ICC24 arbitration within in the country. Additionally, for further enhancement on our current topic we would even consider the dataanalysis made in the Asia Arbitration Handbook, where it is clearly mentioned that Pakistanbeing one of the first signatories of the convention has effectively tried to participate in theprocess of arbitration with 1% of parties to the dispute originating from this nation with 625 arbitrators and one arbitration tribunal situated in Karachi.In addition to the above stated estimations of ICC, the different legislations that would beapproached in the dissertation explaining the implementation of arbitration in Pakistan whichwould be discussed in detail in further chapters are The Arbitration Act, 1940 which is known to be the regulation of pre-partition enactment andis still in force in the nation, The Arbitration Bill, 2009 which has been introduced in the Pakistan assembly with the aimto implement the UNCITRAL Model Law and the NY Convention for implementation of theForeign award.The Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards)Act 2011 that was enacted in the year 2011 with the provision that the courts must refer any24Pakistan National Committee of the International Chamber of Commerce, Annual Report-2010, ICC Pakistan, Issue III – Jan 2011;http://www.iccpakistan.com.pk/ICC%20ANNUAL%20REPORT%202010.pdf; Pakistan National Committee of the International Chamberof Commerce, Annual Report-2011, ICC Pakistan, Issue IV – Jan. 2012;st http://www.iccpakistan.com.pk/ICC%20ANNUAL%20REPORT%202011.pdf (accessed on 1 July 2015)25Fry Jason and Cheng-Yee Khong, Part VI ICC Asia, 25 ICC Arbitration in Asia1, Asia Arbitration Handbook, International CommercialArbitration; Source: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date:01 July 2015; : Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 01July 2015; Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 01 July2015; Page 14 ARBITRATION - PAKISTANcommercial dispute with a valid arbitration agreement to the process of arbitration and thatthe enactment and setting aside of the award is to be made as per the Article V of theconvention. Section 8 of the Act clearly states that in conditions where there is discrepancybetween that act and the convention then the provisions of the convention are to be26 prevailed.The Arbitration (Protocol and Convention) Act, 1937, which had made references to theGeneva Protocol for defining the concept of arbitration agreement and this act with reference27 28 to case laws such as the Petroleum Case and the Hitachi case has clearly emphasized theimplementation of foreign award in conditions where both the parties are Pakistanis in theformer case and also when both the parties are foreigners but have agreed that the lawgoverning the agreement of arbitration should be Pakistan law in the later case.After brief introduction on the concept of arbitration and the aims and objectives of thedissertation with brief emphasis on different literature reviews and approach or methodologyof the dissertation we move further in analyzing the evolution and existence of arbitration inPakistan with the help of certain case studies and the recent legislations in the next chapter.This chapter will also help in giving in-depth detail on how the process of arbitration gainedmomentum in Pakistan.CHAPTER I: ARBITRATION IN PAKISTANThe concept of International Arbitration has developed in the nation to a very vast extent andit is convincing in understanding that many countries globally are abreast with it and othernations have began to progress towards its implementation gradually. From the first chapter itcan be understood that the process of arbitration is very simple and voluntary in nature but its26Toulson Tom,Pakistan enacts the New York Covention, New York Arbitration Convention, News, August 2011;http://www.newyorkconvention.org/news/pakistan-enacts-new-york-convention 27Petrocon (Pvt.) Ltd. V. Hyderabad Development Authority, Hyderabad (1990 MLD Karachi 1675), para.(a).28Hitachi v Rupali Polyester (1998 SCMR 1618), para(a) Page 15 "