CHINA INTERNATIONAL WATER AND ELECTRIC CORPORATION (CWE) P.R. CHINA vs NATIONAL HIGHWAY AUTHORITY S

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CHINA INTERNATIONAL WATER AND ELECTRIC CORPORATION (CWE) P.R. CHINA VS NATIONAL HIGHWAY AUTHORITY S. 6(1)---arbitration act (X of 1940), Ss. 30 & 33---United Nations Convention on Recognition and Enforcement of Foreign arbitral awards, 1958 (New York Convention), art. V(1)(e)---Foreign arbitral award---Misconduct---Proof---appellant/National Highway authority was aggrieved of Foreign arbitral award passed against it in proceedings held in Paris, France---appellant assailed the award on the plea of misconduct before District Judge Islamabad but the application was dismissed---Validity---New York Convention did not permit any review of merits of award to which it applied---Grounds on which recognition and enforcement of a foreign arbitral award could be refused were exhaustively set out in art. V of New York Convention---Even in cases where any of such grounds were satisfied, High Court could proceed to recognize and enforce the award--- Use of word "may" in arts. V(1) & (2) of New York Convention made refusal to recognize and enforce an award permissive and not mandatory---Grounds on which recognition and enforcement of award could be refused under art. V of New York Convention did not include an erroneous decision in law or in fact by arbitral Tribunal--- High Court, while deciding an application under S. 6 of Recognition and Enforcement (arbitration agreements and Foreign arbitral awards) act, 2011 was not to review merits of arbitral Tribunal's decision---High Court directed to execute the award and accorded recognition to the award, as none of the grounds envisaged by art. V of New York Convention for refusing to enforce a foreign arbitral award were satisfied by appellant/National Highway authority---appeal was dismissed, in circumstances. Citation Name: 2023 CLD 1400 ISLAMABADBookmark this Case CHINA INTERNATIONAL WATER AND ELECTRIC CORPORATION (CWE) P.R. CHINA VS NATIONAL HIGHWAY AUTHORITY Ss. 3(3)(a) & 6---Foreign arbitral award---Recognition and enforcement---Expression "as nearly as may be"---Scope---Mere fact that in terms of S. 3(3)(a) of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 High Court is to follow the procedure "as nearly as may be" provided for in C.P.C. does not mean that application under S. 6 of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 is to proceed strictly like a suit or that an order for the recognition of a foreign arbitral award is to be accompanied or followed by a decree---Expression "as nearly as may be" makes it permissible for High Court to deviate from procedural requirements in C.P.C. Citation Name: 2023 CLD 1400 ISLAMABADBookmark this Case CHINA INTERNATIONAL WATER AND ELECTRIC CORPORATION (CWE) P.R. CHINA VS NATIONAL HIGHWAY AUTHORITY art. V(1)(e)---Word "law"---Connotation---Word "law" employed in art. V(1)(e) of New York Convention refers to lex arbitri or curial law i.e. law of seat of arbitration and not the proper law governing the Contract or arbitration agreement. Citation Name: 2023 CLD 1400 ISLAMABADBookmark this Case CHINA INTERNATIONAL WATER AND ELECTRIC CORPORATION (CWE) P.R. CHINA VS NATIONAL HIGHWAY AUTHORITY S. 31---International commercial contracts---Law applicable---Place of arbitration, selection of---Principle---Arbitration agreement, which creates rights and obligations of parties to submit disputes to arbitration and to abide by award, is an agreement severable from substantive contract in which it is embedded---Agreement is also capable of surviving termination, repudiation and frustration of substantive contract---Arbitration agreement is considered to have a distinct life of its own, it can be governed by a proper law of its own which need not be the same as the law governing substantive contract---Where there is no express choice of law governing arbitration agreement, presumption would be that the parties intended for law chosen to govern the substantive contract to be the law governing the arbitration agreement---Proper law of arbitration agreement governs obligation of parties to submit disputes to arbitration, and to honour an award---This has to be distinguished from curial law of arbitration, which governs conduct of individual reference---Procedural law of arbitration which is also called "lex arbitri" or "curial law" deals with a range of issues including the form and validity of arbitral award; and finality of award, including any right to challenge award in Courts of the place of arbitration---In order to determine curial law in absence of an express choice by parties, it is first necessary to determine the seat of arbitration---This is so because where parties do not choose curial law, the law of seat of arbitration would be the curial law which governs arbitration proceedings---Seat of arbitration is a location selected by parties as the legal place of arbitration, which consequently determines procedural framework of arbitration---Contracting parties have freedom to agree on seat of arbitration---Where parties make no such agreement, the seat may be determined by arbitral tribunal or administering arbitral institution in accordance with and subject to arbitration rules chosen by the parties---Where this is also not done the place where the arbitration is conducted is the seat of arbitration.

CHINA INTERNATIONAL WATER AND ELECTRIC CORPORATION (CWE) P.R. CHINA vs NATIONAL HIGHWAY AUTHORITY S — 2023 CLD 1400 ISLAMABAD

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