Author: Fahad Bin Tariq*
| Jurisdictions: | Topics: |
Three Filings, Three Rescues from Abroad
A party facing a foreign-seated arbitration or the award that resulted from it has used the jurisdiction of a Lahore court three times in the last ten years to stop it. Before an award was made, Wateen Telecom filed a lawsuit in Lahore in August 2016 to halt an arbitration held at the Dubai International Financial Center. The National Transmission and Despatch Company filed an application in the same forum to contest an award made under the London Court of International Arbitration’s jurisdiction in the case that resulted in Atlas Power. That corporation did it again in August 2024. The DIFC Court and the English courts both rejected the attempt from outside of Pakistan[1].
The question of whether such an application is competent at all has never been put to a Pakistani appellate court. However, Pakistani law already provides a solution. The Sindh High Court ruled in Abdullah that an objection to a foreign award may only be made in proceedings started by the award creditor under the statute that Pakistan uses to implement the New York Convention[2]. According to that interpretation, Article V provides a shield rather than a sword. The English Court of Appeal reached this conclusion in July 2025, more than ten years later, and via a different path. Therefore, Pakistan’s problem is not a lack of doctrine but rather the obscurity that underlies it: a single first-instance ruling based on an interlocutory application, uncodified, never upheld on appeal, incomplete on its own terms, and unknown to the global market. Because of this, protection is still bought in London[3].
The English Answer
The idea is not new. In Atlas Power, the award debtor challenged a London-seated award in Lahore, arguing that Pakistani courts had concurrent supervisory authority. An anti-suit injunction was granted, rejecting that argument[4]. The dispute resolution clause in question was essentially the same as the one that would eventually apply to Star Hydro’s construction[5].
In 2024, the sequence was repeated with improved method. The tariff payable from the date of commercial operations was determined by the lone arbitrator, who also ordered payment of the difference. The award debtor filed an application under the Pakistani implementing statute with the Lahore High Court within three months, requesting, among other things, partial recognition and enforcement. In essence, what was sought was an injunction prohibiting the award creditor from billing above the regulated tariff, declarations that the arbitrator’s assumption of jurisdiction was invalid, and recognition of the award’s residual dismissal of outstanding claims. The justifications were taken from both of Article V’s paragraphs. The court suspended the creditor’s demand notice that same day without giving any prior warning[6].
Phillips LJ, who had decided Atlas seven years prior, held before the Court of Appeal that an agreement on the seat functions as an exclusive jurisdiction clause in favor of the supervisory court and that a challenge based on the Convention provides a shield against applications for recognition or enforcement rather than a sword with which an award may be attacked preemptively. He noted that free-standing objections are only covered under the English Arbitration Act’s recourse provisions, which only apply to arbitrations with an English seat. In violation of the arbitration agreement, the Lahore application was a challenge under the pretense of enforcement, and the injunction applied directly to the award debtor rather than the Lahore High Court[7].
The current investigation is prompted by a more limited observation. According to his Lordship, the English court could not forfeit its oversight role and rely on a foreign court to deny jurisdiction because doing so would allow parties to invoke domestic provisions abroad that ostensibly authorize interference with foreign awards; he added that this might very well be the case under Pakistani law[8]. The UK Supreme Court heard the appeal in June 2026, but the decision is still pending[9].
Neither outcome in London disturbs this argument. If the Court of Appeal is upheld, anti-suit relief remains available only to debtors reachable in England, a jurisdictional accident rather than a rule. If Dias J is restored instead, that backstop disappears, and a debtor able to point to any seat outside Pakistan gains the freestanding right to pre-empt an award that Abdullah already denies him at home. Either way, the Pakistani gap survives the appeal; only the urgency of closing it changes.
Anti-suit relief only provides a second-best solution, regardless of the result. Because it functions in personam, it only affects debtors who have exposed assets or interests in England. In this case, it was possible because the seat was London; if the parties had not altered the default Lahore seat for which their clause otherwise stipulated, the same maneuver would have faced a different court or none at all. It is acquired at the expense of a second round of procedures and only appears after a revenue stream has already been interrupted by an order issued without prior notification. Most importantly, when such an application is presented to a Pakistani judge, it tells him nothing about what Pakistani law demands of him.
The Case Against the Court of Appeal
The judgment at first instance deserves more consideration than the commentator has typically given it, and the appellate finding is not obviously accurate. Dias J rejected the injunction, ruling that the English courts have no policing authority over how other Convention states handle awards; that Article V grants a substantive right that an award not be recognized on the grounds listed therein, and that no principle precludes the assertion of that right prior to any application by the creditor; that the award debtor was not attempting to undermine the award in any fundamental way; and that considerations of comity required the assumption that the Pakistani courts would uphold their obligations under the Convention[10].
The complexity of the issue is demonstrated by the fact that it split a Commercial Court judge from a unanimous Court of Appeal and has subsequently reached the Supreme Court[11]. According to the reasoning that follows, Dias J was closer to the truth about the Pakistani material than the Court of Appeal believed, and further away from it in assuming that the evidence completely resolves the issue.
Pakistan’s Own Answer
Abdullah emerged from simple truths. In accordance with an arbitration clause included in a charterparty, a London tribunal declared against the petitioner and granted an amount in favor of an Algerian shipowner. Despite the plaintiff’s repeated denials of being a party to that charterparty, the tribunal determined that he was the party’s undisclosed principal. In order to obtain a negative declaration, he started legal processes in Karachi[12].
The United States Court of Appeals for the Seventh Circuit is reasoning, the Italian Supreme Court’s jurisprudence, the French lawsuit for a declaration of unenforceability, and the leading commentators on the Convention were all examined by the court. It came to the conclusion that admission is a matter for the forum’s law and that the Convention does not by itself prohibit an action for a negative declaration[13].
After that, the court looked to that law, and this is where the logic has escaped notice overseas. According to the implementing statute, only in compliance with Article V may recognition and enforcement be denied. In turn, the first paragraph of Article V allows for refusal at the request of the party against whom the award is invoked, provided that the relevant body in the jurisdiction where recognition and enforcement are sought receives proof. Thus, the paragraph contains two antecedent conditions: the award must have been invoked, and enforcement must have been sought. Each considers objections raised in the creditor-initiated process. A challenge to a foreign award is limited to procedures brought by the creditor when the forum’s law does not expressly or implicitly provide otherwise. The clause cannot be used as a sword; instead, it functions as a shield. The court used the unique clause that makes the Convention take precedence over the implementing statute in the case of inconsistency to support its decision to reject the more expansive viewpoint put forward in one of the main commentary.
The logic is stronger than that used in England in two ways. It comes from the enforcement statute itself, thus it does not care where the seat is. It also does not need an injunction against a party because a court that applies it just refuses to consider the matter. Since no foreign court is asked to be questioned, there is no issue of comity.
There are two important requirements, neither of which has been examined. The first relates to scope. The conclusion was stated to be valid, at least in relation to Article V’s first paragraph. The second clause, which allows the competent authority to reject its own motion on the grounds of arbitrability and public policy two of the grounds used at Lahore in 2024 does not contain the phrase that the court relied upon. Given the current status of the authority, whether the same argument applies to the second paragraph is still up for debate rather than a defined norm. Status is the subject of the second. The operative order specifically retained the plaintiff’s right to present the same argument in defense should enforcement ever be sought, but it dismissed an interlocutory application for lack of a prima facie case.
The statute itself supplies an answer to the first gap, even though the Sindh High Court had no occasion to give one. Section 7 of the 2011 Act draws no line between the Convention’s two paragraphs: recognition and enforcement shall not be refused except in accordance with Article V, and nothing further. The power exercised under the second paragraph is a power to act on the court’s own initiative within a proceeding already before it, not a cause of action for a debtor to bring that proceeding into being. To confine Abdullah’s shield to the first paragraph, on the ground that only it speaks of a party furnishing proof, would let a debtor achieve by pleading arbitrability or public policy exactly what Abdullah forbids him to achieve by pleading incapacity or excess of mandate.[14]
The Question Not Asked
In contrast, Pakistan’s enforcement jurisprudence is well-established. In the SpaceCom case, the Lahore High Court declined to recognize awards made in accordance with the DIFC-LCIA Arbitration Center’s rules on the grounds that the tribunal’s makeup and the arbitral process deviated from the parties’ agreement because the parties had chosen mainland Dubai as their seat rather than the Center[15]. Applying Dallah, the court ruled that the DIFC Court’s decision regarding the seat could not bind the enforcement court, which was not only entitled but also had to reexamine the matter, and that the tribunal’s own assessment of its jurisdiction carried neither legal nor evidential weight[16]. The idea is informed throughout by the prominent treatises on dual control as well as the authorities of the Singapore Court of Appeal and the United Kingdom Supreme Court regarding the significance of the seat. Using a summary test and an acknowledged predisposition in favor of enforcement[17], the same judge had previously upheld a commodity association appeal award despite a rejection of signature[18]. When the question the implementing statute was designed to address is posed, it performs admirably.
The question that was not posed is revealed by the history of that particular lawsuit. In August 2016, the award debtor filed a lawsuit in Lahore and was granted an injunction; in early 2017, the DIFC Court granted anti-suit relief to the award creditor; and in March of that year, the Lahore proceedings were abandoned. In any case, eight years later, the debtor won the defense at the enforcement stage in front of the same court that it had been driven from. No side was questioned about the Lahore action is competence under Pakistani law in either forum.
From Doctrine to Statute
In Orient Power, the Supreme Court of Pakistan engaged with the implementing statute to its maximum extent[19]. This was also a shield case: the debtor objected on the grounds of public policy, the creditor sought enforcement, and the Court interpreted the exception narrowly, thus ruling that a complaint about quantum is not a public policy objection. In its reasoning, the Court noted that Pakistan’s courts should strive for precedent that does not encourage pointless litigation, that the statute is silent on issues covered by the Model Law, and that the country has not yet established a stable jurisprudence of international arbitration. It has never faced the issue of initiation.
Comparisons with the domestic regime are encouraged. The Arbitration Act of 1940 provides a front door for a domestic award; it lists the grounds and mature authority on which a judgment may be set aside. There is absolutely no front door for a foreign award. The implementing act does not specify who may initiate, at what stage, or in what procedural posture; instead, it instructs the court on what it must do when a creditor applies. London is currently filling that void.
It is not filled by the Draft Arbitration Act, which is still pending. Despite being influenced by the Model Law, the Bill primarily pertains to arbitrations held in Pakistan; it only extends to proceedings held abroad through specific provisions of assistance, such as court-ordered interim measures and judicial help in the taking of evidence. Each is intended to assist an arbitration that is still in progress, and once the decision has been made and the dispute has progressed to enforcement, each becomes uncomfortable. More importantly, the Bill does not change the implementing laws. As a result, the change that follows is more specific and limited than what is typically advocated: a focused revision to the implementing statute that codifies the rule and explicitly answers the question that the authority left open[20].
Rather than being unique, the suggestion is one of routine legislative upkeep. India legislated the boundary directly rather than allowing it to accumulate case by case after restricting Part I of its own statute to arbitrations seated within India. This was done by introducing a proviso that restored certain provisions to arbitrations seated abroad, subject to agreement to the contrary[21]. German law reaches the same conclusion in the other way: only as a result of the creditor’s unsuccessful application for a declaration of enforceability can a debtor receive a finding that a foreign award is not to be recognized. The debtor is not permitted to start the negative declaration; it already exists.
The German model’s advantage to the creditor is less clear than it looks. An Abdullah refusal disposes only of the application before the Lahore court; nothing in that order forecloses the same creditor pursuing the same award before a different forum later, since no free-standing finding on the award’s validity was ever sought or made. A German refusal is different in kind: it is a ruling that the award is not to be recognised in Germany, produced because the creditor itself asked the court to rule on recognition and lost.[22] The German debtor obtains, through the same passivity Abdullah requires of a Pakistani one, something Abdullah’s structure does not supply: a substantive finding rather than a procedural rebuff. The two models do not obviously differ in which party they favour; they differ in what the debtor’s victory is worth.
A provision doing this need not be elaborate. A proviso to section 7 of the 2011 Act, on the model of the one India inserted into section 2(2) of its own Arbitration and Conciliation Act, could read: “Provided that no objection to the recognition or enforcement of a foreign arbitral award on any ground set out in Article V, whether under paragraph (1) or paragraph (2) thereof, shall be entertained by the Court except in proceedings instituted under section 5 for the recognition and enforcement of that award.”[23] That sentence does the whole of the work Abdullah has been asked to do without appellate authority for over a decade: it fixes the gateway, closes it to both paragraphs of Article V, and does so on the face of the statute a foreign creditor’s counsel would actually be reading.
An additional irony is taken into consideration. The Pakistani judge who gave the response has been a member of Pakistan’s Supreme Court since 2018. He is currently sitting on a court that has never been asked to uphold it.
A Rule Worth Codifying
The award debtor in SpaceCom was barred from litigating at Lahore and prevailed in any event, years afterwards, upon the defence. That is the main point of contention. The contrast between starting and defending is feasible, it already exists in Pakistani practice, and it denies an award creditor the protection that the Convention was designed to provide. It seeks both the approval of an appellate court and a statutory home.
London’s case will be decided by the UK Supreme Court in a matter of months. Pakistan will not benefit from whatever decision it makes. The foreign backstop vanishes and the gap becomes urgent if the appeal is successful. In the event that it fails, the backstop is firmly established, and Pakistan is still viewed as a jurisdiction whose own response has never been heard by a market that continues to insure against it.
*Fahad Bin Tariq is a Trainee Lawyer at ABS & Co., where his work focuses on arbitration, commercial litigation, constitutional law, and company matters
[1] SpaceCom Int’l LLC v. Wateen Telecom Ltd., 2025 CLD 241 (Lahore High Ct.) (Pak.); Atlas Power Ltd. v. Nat’l Transmission & Despatch Co. Ltd. [2018] EWHC (Comm) 1052 (Eng.); Star Hydro Power Ltd. v. Nat’l Transmission & Despatch Co. Ltd. [2025] EWCA (Civ) 928 (Eng.).
[2] Abdullah v. Messrs CNAN Group SpA, PLD 2014 Sindh 349 (Pak.) (Munib Akhtar, J.).
[3] Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, No. XVII of 2011 (Pak.); Convention on the Recognition and Enforcement of Foreign Arbitral Awards art. V, June 10, 1958, 330 U.N.T.S. 3.
[4] Atlas Power, [2018] EWHC (Comm) 1052, [38]-[41].
[5] C v. D, [2007] EWCA (Civ) 1282 (Eng.). The clause made Lahore the default seat while entitling either party to require London where the amount in dispute exceeded a stipulated threshold.
[6] The application was made on or about 7 August 2024 and invoked arts. V(1)(a), V(1)(c), V(2)(a) and V(2)(b) of the Convention. The award bore the date 7 May 2024.
[7] Star Hydro, [2025] EWCA (Civ) 928, [42], [50], [53], [65].
[8] Id. [59].
[9] Star Hydro Power Ltd. v. Nat’l Transmission & Despatch Co. Ltd., UKSC-2025-0150 (heard 15-16 June 2026; judgment awaited as of August 2026).
[10] Star Hydro Power Ltd. v. Nat’l Transmission & Despatch Co. Ltd. [2024] EWHC (Comm) 3258, [6]-[9], [13]-[14] (Eng.) (Dias, J.).
[11] Joseph Khaw, Going Cherry Picking: Star Hydro v National Transmission and Despatch Co, [2026] LMCLQ 9.
[12] Abdullah, PLD 2014 Sindh 349 (Suit No. 561 of 2013, decided 15 April 2014). The award was made at London on or about 17 October 2012 upon an arbitration agreement contained in a charterparty dated 7 November 2005.
[13] Id. paras. 7-11, discussing Acteurs Auteurs Associes v. Hemdale Film Corp., XVI Y.B. Com. Arb. 543 (1991) (Fr.); Slaney v. Int’l Amateur Athletic Fed’n, 244 F.3d 580 (7th Cir. 2001); Lanificio Mario Zegna SpA v. Ermenegildo Zegna Corp., XXXI Y.B. Com. Arb. 798 (2006) (It.); Herbert Kronke et al., Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention(2010); Reinmar Wolff (ed.), New York Convention: Commentary (2012).
[14] Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, No. XVII of 2011, § 7 (Pak.); Convention art. V(2).
[15] SpaceCom Int’l LLC v. Wateen Telecom Ltd., 2025 CLD 241 (Civil Original No. 25854 of 2023, decided 4 December 2024) (Pak.) (Shahid Karim, J.); Convention art. V(1)(d).
[16] Dallah Real Estate & Tourism Holding Co. v. Ministry of Religious Affairs, Gov’t of Pakistan [2010] UKSC 46, [30], [102]-[104], [158]-[159] (Eng.), discussed in SpaceCom, paras. 32-34.
[17] ST Group Co. Ltd. v. Sanum Invs. Ltd. [2019] SGCA 65, [96]-[101] (Sing.); Enka Insaat ve Sanayi A.S. v. OOO Ins. Co. Chubb [2020] UKSC 38, [1] (Eng.); Russell on Arbitration (21st ed.); Wolff, supra note 13.
[18] Louis Dreyfus Commodities Suisse S.A. v. Acro Textile Mills Ltd., PLD 2018 Lahore 597 (Pak.).
[19] Orient Power Co. (Pvt) Ltd. v. Sui Northern Gas Pipelines Ltd., 2021 SCMR 1728 (Pak. S. Ct.) (Civil Appeal No. 1547 of 2019, decided 17 August 2021).
[20] Draft Arbitration Act 2024, ss. 10, 29 (Pak.) (unenacted), prepared by the Arbitration Law Review Committee under the Law and Justice Commission and presented to the Federal Minister for Law and Justice on 2 May 2024.
[21] Bharat Aluminium Co. v. Kaiser Aluminium Technical Servs. Inc., (2012) 9 S.C.C. 552 (India); Arbitration and Conciliation (Amendment) Act, 2015 (India) (inserting the proviso to s. 2(2)).
[22] Zivilprozessordnung [ZPO] [Code of Civil Procedure] § 1061 (Ger.).
[23] Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, No. XVII of 2011, § 7 (Pak.); cf. Arbitration and Conciliation (Amendment) Act, 2015, § 2 (India), supra note 20.