Author: George A. Bermann*
Published: July 2011
Rarely, over the decades following its entry into force, was the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, or New York Convention, the subject of a judgment of the UK House of Lords. Yet, within barely over a year after its succession to the House of Lords in October 2009, the United Kingdom Supreme Court delivered a judgment that may not make up for all that lost time, but is deeply instructive nonetheless. The decision in Dallah Real Estate and Tourism Holding Company v. Ministry of Religious Affairs, Government of Pakistan became the vehicle for the Court to lay down important markers not only for arbitration with sovereign entities, but for the judicial role in the enforcement of foreign awards generally. On the facts, Dallah looks very much like just another entry in a long series of arbitral awards tackling the issue of the separateness of States from their agencies and instrumentalities. The issue has been a recurrent one because, by the time a dispute arises and an arbitration ensues, the instrumentality that is the signatory party is often no longer an attractive respondent. It may lack assets to pay an award, and it may not even any longer exist. After briefly setting out the facts of the case and its procedural history in Part II of this article, I explore in Part III Dallah’s significance in this first respect.
As will be seen, the UK Supreme Court in Dallah denied enforcement against the Government of Pakistan of an arbitral award rendered in France, on the ground that the Government – a non-signatory to the underlying arbitration agreement signed by one of its instrumentalities – was never bound by that agreement and therefore not liable for the award. The UK decision is all the more revealing in this respect since, only a few months later and in full awareness of the UK …
*Jean Monnet Professor of European Union Law and Walter Gellhorn Professor of Law, Columbia Law School.