Enforcement of Judgments 2022 Comparisons

Last Updated August 02, 2022

Contributed By Asma Hamid Associates

Law and Practice

Authors



Asma Hamid Associates (AHA) is a disputes-focused practice that caters to local and foreign clients who seek personalised and niche legal services in Pakistan. Its roots in Lahore, and its alliance with renowned lawyers in Karachi, Islamabad and Peshawar and international law firms, make AHA a one-stop solution for clients. Asma and her team have a deep working knowledge and vast practical experience of representing clients before the superior courts, civil courts, tribunals, authorities and law enforcement agencies. Asma is an Advocate of the Supreme Court of Pakistan and former Advocate General of Punjab known for her dispute resolution and litigation practice.

Public Records of Assets, etc

Public companies are required by law to file annual statutory reports that include details of their directors and their assets/capital expenditure including building, plant and machinery, with the Securities & Exchange Commission of Pakistan (SECP). This record is publicly accessible online.

Companies (both public and private) are also obligated to disclose to the SECP all charges/security created on any company asset. Such disclosures can also be publicly accessed through the SECP.

Listed companies are obligated to post their balance sheets/financial statements on their websites. Where such a record is not available online for any reason, a physical inspection of the file may be applied for to the relevant office of the SECP.

Partnerships and sole proprietorships are not obligated to publicly disclose their lists of assets. There are various asset-tracing agencies operational in Pakistan.

Assets of immovable property are discoverable if registered, from the land revenue authorities in the particular district where such immovable property is located. 

Court Orders for Declaration of Assets

Upon an application to the court, the court can order for the judgment debtor to declare his or her assets and may call for books and documents to verify the information disclosed.

In case of a threat of removal or dissipation of assets after judgment and before execution, a plaintiff or decree holder may apply to the court for an order of attachment of movable and immovable property. At the time of execution of a decree, a court may also pass a garnishee order restraining a third party from paying a debt to the judgment debtor.

A judgment is the statement given by the judge of the grounds of a decree or order, as defined by the law governing civil proceedings in Pakistan – the Code of Civil Procedure, 1908 (CPC) – that conclusively determines the rights of the parties either on a preliminary issue or on all the issues between them. The types of decrees that are recognised and enforceable are:

  • ex parte judgment and decree – an ex parte judgment is recognised in the same manner as if the party were present before the court;
  • judgment on the basis of admission – at any stage of a suit, if an admission of fact is made, any party may apply to the court for a judgment that, on the basis of such admission, it may have become entitled to; the court may pass such judgment without waiting for the determination of any other question between the parties;
  • interim decree – where the dispute between the parties does not extend to the whole of the claim or where part of the claim is either undisputed or is clearly due, the court may pass an interim decree in respect of that part of the claim which relates to the principal amount and which appears to be payable by the defendant to the plaintiff, and hold a full trial for the remaining part of the claim;
  • summary judgment – a summary judgment is given by a court without a full trial; eg, the Financial Institutions (Recovery of Finance) Ordinance, 2001, which is a special law that governs recovery proceedings instituted by any financial institution against any customer for the recovery of finance, stipulates that the financial institution shall be entitled to a summary judgment against a customer unless the customer is able to show a genuine dispute regarding any material point of fact;                                 
  • declaratory decree – a declaratory judgment determines the rights and liabilities of the parties where the parties wish to obtain a judicial declaration of their rights and duties on account of any conflicting views; and                                         
  • consent decree – a decree on the basis of compromise of the suit.

Other forms of final and preliminary decrees which may be made by a court are decrees:

  • for recovery of immovable property;
  • for delivery and recovery of movable property;
  • for possession and mesne profits;
  • for prohibitory injunction;
  • for mandatory injunction;
  • for specific performance;
  • in a suit for administration;
  • in a claim to pre-emption in respect of sale of property;
  • for dissolution of partnership;
  • for restitution of conjugal rights;
  • in suits for accounts between principal and agent;
  • in a suit for partition of property or separate possession of a share therein; and
  • when set-off is allowed.

A domestic judgment and decree against which no appeal has been filed or against which an appeal has been filed and has been dismissed, is to be executed by the court of first instance that passed the decree or by the court to which it is sent for execution (in a case where the judgment debtor actually resides within the jurisdiction of such other court, or the immovable property decreed to be sold or delivered to the decree holder is within the local limits thereof).

Section 51 CPC vests a court with powers to enforce the execution of a decree against a judgment debtor or his or her legal representative. The procedure for enforcement of a decree is provided in Order 21 CPC, as follows:

  • a decree holder that wishes the decree to be executed shall apply to the court which passed the decree or to the court to which it has been sent for execution in accordance with the form of application provided under Rule 11 of Order 21;
  • an application for execution shall include the mode in which the assistance of the court is required; refer to ‘Modes of Execution’ below;
  • an application for execution of a money decree may be made orally at the time of passing the decree, and the court may order the immediate execution thereof by the arrest of the judgment debtor;
  • an application for the attachment of movable property belonging to a judgment debtor but not in his or her possession shall be annexed with an inventory of the property to be attached, containing a reasonably accurate description of the same;
  • an application for the attachment of immovable property shall contain a description of such property and a specification of the judgment debtor’s share or interest in such property;
  • upon receiving an application for execution of a decree, the court shall ascertain whether the requirements of Rules 11 to 14 of Order 21 have been complied with, and if they have not been complied with, the court may reject the application, or may allow the defect to be remedied then and there or within a time fixed by it;
  • when the application for execution is admitted by the executing court, it may, in certain instances, issue notice to show cause against execution; otherwise, it shall, subject to certain other provisions, order the enforcement and execution of the decree and issue process thereof;
  • in Pakistan, a court has discretion whether to issue notice on an application for execution of a decree and may dispense with the requirement if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice;
  • an objection by the judgment debtor to the execution of a decree shall not be considered by the court unless he or she either deposits the decretal amount in the case of a money decree or, in the case of any other decree, furnishes security for the due performance thereof. 

Time Limits for Enforcement

The time limit for application for execution of a decree of a civil court is three years as per Article 181 of the Limitation Act, 1908, and a fresh application for execution will lie under Section 48 CPC, within six years from the date of decree.

The time limit for enforcement of a judgment or order of the High Court passed in exercise of its original civil jurisdiction and of an order of the Supreme Court is six years, provided that where such judgment or order has been revived or partial satisfaction secured or some acknowledgement of the right thereto has been given in writing, then 12 years shall be calculated from the date of such reviver payment or acknowledgement or the latest of such revivers, payments or acknowledgements, as the case may be. 

Modes of Execution

The modes of execution adopted by a court are particular to the type of decree of which enforcement is sought, as provided for by Rules 30-36 of Order 21 CPC, which include:

  • arrest and detention of a judgment debtor or attachment of his or her property, or both;
  • seizure of specific movable property or share thereof and delivery to the person to whom it has been adjudged;
  • sale of attached movable property and the award of the proceeds therefrom to the decree holder;
  • order for attendance and examination of a judgment debtor for a statement of the assets owned by and/or debts owed to him or her and for the production of any books or documents for this purpose;
  • attachment of salary;
  • specific performance of an agreement;
  • delivery of possession of immovable property and removal of any person bound by the decree who refuses to vacate the property, including removal of a lock or breaking open of any door or any other act necessary for putting a decree holder in possession;
  • attachment of immovable property, prohibiting the judgment debtor from transferring or charging the property in any way;
  • partition of the property or separation in share therein;
  • payment of compensation, if such compensation has been specifically decreed as an alternative to delivery of movable property;
  • in the case of a corporation, the attachment of the property of the corporation, or with the leave of the court, the detention in prison of the directors or other principal officers, or both;
  • execution of documents or endorsement of a negotiable instrument if so decreed and its registration, if so required;
  • third-party debt/garnishee orders under Order 21, Rule 46 CPC – the court may attach and prohibit: in the case of a debt, the creditor from recovering the debt and the debtor from making the payment thereof; in the case of a share, the transfer of the same or receipt of any dividend therefrom; in the case of other movable property, the person in possession of the same from giving it over to the judgment debtor. Such a garnishee order can be sought in instances where there is an imminent threat that the judgment debtor will dispose of any part or whole of his or her movable property/debt or remove it from the limits of the jurisdiction of the court. Under the garnishee order, the judgment debtor is issued notice to pay such debt or deliver or account for such movable property/debt. 

Insolvency Proceedings

If the judgment debtor is an insolvent company, then insolvency proceedings may be initiated by any creditor(s) of the company before the High Court under the provisions of the Companies Act, 2017, which result in the company being wound up, and a liquidator being appointed to sell the assets of the company and satisfy the liabilities of the company (to the extent possible).

In case of winding up of the company, the following claims are paid in priority to other debts:

  • all revenues, taxes, cesses and rates due from the company;
  • all wages or salaries of employees;
  • all amounts due, in respect of contributions towards insurance payable during the one year before the next relevant date, from the company as employer of any persons;
  • all amounts due in respect of any compensation or liability for compensation in respect of the death or disablement of any employee of the company;
  • all sums due to any employee from a provident fund, a pension fund, a gratuity fund or any other fund for the welfare of the employees maintained by the company; and
  • any expense payable to the company regulator for any investigation carried out against the company under the provisions of the Companies Act, 2017.

A secured creditor(s), during the winding up of the company, has the option of keeping an asset(s), on which the security/charge has been created for their loan(s), out of the general winding-up asset pool and recovering the amount owed to them by the company from the sale of such asset.

In Pakistan, the executing court has the power to order the payment of additional court fees in a proceeding for execution in which any question relating to the execution, discharge or satisfaction of the decree arising between the parties is to be determined by the court. There are no other fixed costs involved, and the costs for enforcement may vary depending on the nature of the decree sought to be enforced, the lawyer’s fees, the modes of assistance required for its enforcement and the territory/district/location where it is sought to be enforced.

Court Orders for Award of Costs

Although courts in Pakistan have the discretion to award the costs and incidental costs for a suit and the power to determine by whom or out of what property and to which extent such costs are to be paid and to order interest to be paid thereupon, such power is exercised infrequently, and each party generally bears all its own costs.

The time taken to enforce a judgment varies; factors that may delay enforcement include time taken by the court in adjudication on objections by a judgment debtor and/or third parties, identification of assets, procedural delays in sale and attachment of properties, etc. On average, it may take between two and seven years to enforce a judgment.

Refer to 2.2 Enforcement of Domestic Judgments. Section 51 CPC vests the executing court with wide discretionary power to, in addition to specific modes of execution provided therein, order execution in “such other manner as the nature of relief granted may require”. Rules 12 and 13 of Order 21 CPC enable a decree holder to apply for the attachment of movable property belonging to a judgment debtor but not in his or her possession and the immovable property of the judgment debtor or share therein, sought to be attached.

In the case of a money decree, a court may, on the application of a decree holder, orally examine a judgment debtor as to whether any or what debts are owing to him or her and whether he or she has any and what other property or means of satisfying the decree, and the court may order his or her attendance and the production of any books or documents. The purpose of obtaining affidavits with a declaration of assets from a judgment debtor or garnishee is to aid the court in enforcing the decree. 

Proceedings to Challenge Arrest

In all cases, a court has the discretion to order the arrest of a judgment debtor in execution of a decree at any hour and on any day, and the judgment debtor shall, as soon as practicable, be brought before the court. In the case of a money decree where the court has the power to order the immediate arrest of a judgment debtor and otherwise, the judgment debtor may show cause why he or she may not be arrested. Every person detained in prison in execution of a decree may be released from detention before the expiry of the period of detention if the amount mentioned in his or her warrant of detention is paid or the decree against him or her is otherwise satisfied or if the person on whose application he or she has been detained so requests.

Security

An objection by the judgment debtor to the execution of a decree shall not be considered by a court unless the decretal amount is deposited in court in the case of a money decree or, in the case of any other decree, security is furnished for the due performance of the decree. If a claim or objection to attachment of property is filed in respect of execution, the court is vested with discretionary power to investigate such claim or objection provided that it does not consider that such claim or objection will cause deliberate or unnecessary delay.

Effect of Appeal Against Judgement

The court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment debtor to appeal to the court by which the decree was passed, or to any court having appellate jurisdiction in respect of the decree or the execution thereof. The mere filing of an appeal will not automatically operate as a stay on execution.

In an appeal brought against a decree, a judgment debtor is required to state the grounds on which a judgment is challenged, which may include points of law relating to misreading of the evidence or misapplication of the law and technicalities such as limitation, lack of duly issued summons, etc.

Forums for Appeal

An appeal from a judgment of the civil court will lie to the District Court or High Court depending on pecuniary jurisdiction. An appeal to the High Court lies to a single Judge or Division Bench of two Judges, depending on the statutory requirement in certain cases. An appeal from the order of a single Judge of the High Court in exercise of original jurisdiction is appealable to a Division Bench of the High Court in an intra-court appeal. In all cases, the Constitution of Pakistan provides ultimately for a direct appeal or petition for leave to appeal to the Supreme Court, as the case may be according to its particular facts.

A judgment that has attained finality after appeals filed to challenge it have been exhausted is enforceable. A judgment may not be enforceable if the time limit within which execution of the same could have been sought has expired. Refer to 2.2 Enforcement of Domestic Judgments. This will, however, not preclude the court from ordering the execution of a decree where the judgment debtor has, by fraud or force, prevented the execution of the decree, even though the said six-year period has passed.

There is no central register of all judgments in Pakistan. However, the High Court and Supreme Court, as well as a large number of civil courts, maintain an online record of cases which can be publicly accessed to ascertain the status of a particular case. The superior Courts also upload most judgments onto their websites, which can be accessed by the general public.

Pakistan is not a signatory to the Hague Convention on the Recognition and Enforcement of Foreign Judgments. In Pakistan, under Section 44-A CPC, a decree passed by a superior court of the United Kingdom or any “reciprocating territory” (as notified in the Official Gazette) may be directly executed as if it had been passed by a District Court. Currently, the countries notified as “reciprocating territories” are:

  • United Kingdom
  • Fiji
  • Singapore
  • Australia
  • New Zealand
  • Kuwait
  • Turkey
  • United Arab Emirates

Section 44-A CPC, to the extent of its applicability in the province of Punjab, has been amended in 2018 to omit mention of the United Kingdom from the jurisdictions the decrees of which are executable as if passed by the District Court. Therefore, in Punjab, a foreign decree is executable only if it has been passed by a superior court of a reciprocating territory.

Categories of Foreign Decrees to Be Enforced

Section 44-A CPC expressly defines a decree as one under which a sum of money is payable and specifically excludes money decrees relating to taxes or other charges of a like nature or in respect of a fine or other penalty. A decree with reference to a superior court of the United Kingdom includes judgments given and decrees made in any court in appeals against such decrees or judgments, but excludes a foreign decree based on an award.

Procedure for Execution Under Section 44-A CPC

A foreign decree can be enforced through filing of a certified copy of the decree in a District Court along with a certificate from such superior court stating whether the decree has been satisfied to any extent.

There is a presumption of regularity attached to a certified copy of a foreign judgment that such judgment was passed by a court of competent jurisdiction, unless the contrary appears on the record. The onus of dislodging such presumption shall be on the person challenging it.

Thereafter, the decree shall be executed as if it had been passed by the District Court and all the provisions relating to execution contained in the CPC shall be applicable thereto, provided that it is shown to the satisfaction of the court that the decree does not fall within the exceptions of Section 13 CPC. Section 13 states that a foreign judgment is conclusive as to any matter adjudicated upon between the parties except:

  • where it has not been obtained by a court of competent jurisdiction;
  • where it has not been given on the merits of the case;
  • where it appears on the face of the record to be founded on an incorrect view of international law or a refusal to recognise the law of Pakistan in cases in which such law is applicable;
  • where it has been obtained by fraud;
  • where it sustains a claim founded on a breach of any law in force in Pakistan; or
  • where it has been obtained through proceedings which were conducted against the principles of natural justice. 

Procedure of Enforcement of a Foreign Judgment Other than Under Section 44-A CPC

If a foreign decree is from a non-reciprocating territory or was passed by a court other than a superior court or otherwise does not fall within the ambit of Section 44-A CPC, its enforcement lies through filing a separate suit on the basis of the foreign judgment, treating it as a cause of action.

Regardless of the mode, a foreign judgment is enforceable subject to the fulfilment of the conditions of Section 13 CPC, as outlined above.

Under Article 117 of the Limitation Act, 1908, the time limit for enforcing a foreign judgment is six years from the date of the judgment.

Refer to 3.1 Legal Issues Concerning Enforcement of Foreign Judgments.

Refer to 3.1 Legal Issues Concerning Enforcement of Foreign Judgments.

Refer to 3.1 Legal Issues Concerning Enforcement of Foreign Judgments.

A court enforcing a foreign decree under Section 44-A CPC is required under law to issue notice to the person against whom execution is applied for (Rule 22(b) of Order 21 CPC). The rest of the provisions of the CPC relating to execution will be applicable to such execution proceedings.

Where the requirements of Section 44-A CPC are not fulfilled, a separate suit will lie. In such a suit, the foreign judgment is relied on as the cause of action and as evidence of the money owed to the judgment creditor/plaintiff.

The costs and time taken to enforce a foreign judgment will depend on whether or not its enforcement is sought under one or the other of the prescribed modes described in 3.1 Legal Issues Concerning Enforcement of Foreign Judgments.

In the case of the former (under Section 44-A), enforcement through execution will take the same amount of time and incur the same costs as for the enforcement of a domestic judgment (refer to 2.3 Costs and Time Taken to Enforce Domestic Judgments). Additional costs of translation of a judgment into English, if required, may be incurred.

Enforcement of a foreign judgment other than under Section 44-A CPC, through institution of a suit, will take the same course and face the same challenges by way of appeal as a domestic suit and judgment.

Additional Costs in a Suit for Enforcement

Order XXV CPC provides discretionary power to a court to order the plaintiff(s) in a suit, if they all reside out of Pakistan and do not possess sufficient immovable property within Pakistan, to furnish security for all costs incurred and likely to be incurred by the defendant(s).

The execution of a foreign judgment is challengeable on one of the several grounds referred to in 3.1 Legal Issues Concerning Enforcement of Foreign Judgments.

The execution of a foreign judgment is challengeable in the court executing the decree. As a foreign judgment from a reciprocating territory is treated in the same manner as if the decree had been passed by a domestic District Court, the provisions of the CPC in respect of objections to execution and seeking a stay of proceedings will be applicable to such execution proceedings.

In Pakistan, arbitral awards are either domestic, ie, passed according to and under the Arbitration Act, 1940 (“Arbitration Act”), or foreign. A foreign arbitral award is defined in and enforceable in Pakistan under the Recognition and Enforcement of Arbitration Agreements and Foreign Arbitral Awards Act, 2011 (“REAFA 2011”), as an award made in a ”Contracting State ”, ie, a state which is a party to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, commonly known as the New York Convention (“the Convention”). A foreign arbitral award is enforceable under REAFA 2011.

The legal issues under consideration during the enforcement of arbitral awards are:

  • classification of an award as “domestic” or “foreign” and corresponding applicability of the relevant law;
  • power to grant interim relief in respect of foreign awards; 
  • applicability of time limitation to filing, notice of, remittance of and challenge to an award;
  • invalidity of arbitration agreements; burden of proof required therefor;
  • applicability of the public policy exception to enforcement of foreign awards;
  • invalidity of an arbitration agreement; and
  • grounds for challenging an award or seeking its remittance.

Refer to 4.1 Legal Issues Concerning Enforcement of Arbitral Awards for the different classifications of awards and governing law(s).

The majority of arbitral awards concern commercial matters. Courts tend to favour expedition of both domestic and foreign arbitral awards; however, domestic awards are required to be filed in the civil court, which adds a tier of juridical and appellate hierarchy through which the award must pass. Moreover, the Arbitration Act provides for the court to modify the award, for the award to be remitted and for the award to be set aside. Civil courts seized with resistance to enforcement of a domestic arbitral award are bound to observe the rules and timelines of civil procedure and this approach, therefore, necessarily lengthens the time consumed to enforce a domestic award.

Applications to enforce a foreign arbitral award lie before the High Court concerned. High Courts all over Pakistan as well as the Supreme Court favour expeditious enforcement of foreign awards as well as a narrow and restrictive interpretation of the exceptions contained in Article V of the Convention.

The following categories of arbitral awards may not be enforced:

  • an improperly procured or otherwise invalid domestic award;
  • a domestic award made after arbitration proceedings have been superseded by order of court;
  • a domestic award in which the arbitrator is found guilty of misconduct; and
  • a foreign award that is unenforceable under Article V of the Convention.

Enforcing a Domestic Award

For a domestic award to be made a rule of court, the procedure is set in motion by filing of the award in court. Section 14(1) of the Arbitration Act provides for the arbitrators or umpire to give written notice to the parties after they have made and duly signed the award. Thereafter, the arbitrators or umpire are required to file the award along with the entire record in the civil court, upon request of either of the parties to the arbitration agreement or upon direction of the court, within three months after service of notice.

The court shall issue notice to the parties of the filing of the award, after which a period of 30 days is allowed within which an application to set aside the award or have the award remitted to the arbitrators or umpire for reconsideration may be filed. Whether or not any objection is filed, the court shall also examine the award for its validity before making it a rule of court.

The court is vested with jurisdiction (Section 15 of the Arbitration Act) to modify or correct an award that has determined matters in excess of those referred to arbitration in a case where such part is separable from the rest of the award or where the award is imperfect in form or contains an obvious error which can be amended without affecting the decision. The court is also vested with jurisdiction to correct any clerical mistake or error arising from an accidental slip or omission.

The court may remit the award for reconsideration to the arbitrators or umpire from time to time and may fix a time within which the arbitrators or umpire must submit their decision. An award may be remitted where the award has failed to determine any matter referred to it or determined a matter not referred to it and such a matter is not separable from the award. An award may also be remitted where it is so indefinite that it is incapable of being executed or where an objection to its legality is apparent upon the face of the award. The court may also remit an award where the arbitrators or umpire have failed to state reasons for the award in sufficient detail (Section 26-A).

Award to Be Made Rule of the Court

After determination of applications for remission or setting aside of an award, the court shall proceed to announce judgment according to the award, followed by a decree, whereby the award shall be made a rule of court (Section 17). Such a decree is final and not appealable unless it is in excess of or not in accordance with the award.

Enforcing a Foreign Award

To enforce a foreign arbitral award, a party may file an application before the High Court concerned under Section 6 REAFA 2011; the arbitration agreement and the award, in original form or a certified copy thereof, are required to be appended to the application.

Generally, High Courts in Pakistan have held that objections to the enforceability of a foreign arbitral award are to be decided in a summary manner after hearing the parties concerned. Objections to the validity and/or enforcement of a foreign arbitral award may be brought on one or more of the grounds provided under Article V of the Convention – refer to 4.6 Challenging Enforcement of Arbitral Awards for the grounds therein. 

At the final determination of the objections to enforceability of the foreign award, the court shall pass judgment and decree for the recognition and enforcement of the award. 

Appeal From an Order for Enforcement of a Foreign Award

An appeal from such judgment of the High Court, if passed by a single Judge, will lie in the form of an intra-court appeal to a two-member Bench of the High Court. A final judgment of the Division Bench in this respect is appealable through filing a petition for leave to appeal in the Supreme Court, which may be converted to an appeal at the discretion of the Supreme Court.

Costs of Enforcing a Domestic Award

Section 41 of the Arbitration Act provides expressly for the CPC to be applicable to all proceedings for the enforcement of a domestic award. Therefore, all pleadings, submissions, applications and replies are subject to the associated costs of filing; such costs include court fees and expenses of obtaining certified copies of documents.

An appeal arising from an interim or final judgment of a civil court in respect of a challenge to an award is also subject to the same procedural laws, including in respect of costs up to the Supreme Court.

In addition, stamp duty is imposed under the Stamp Act, 1899 “on an award, that is to say, any decision in writing by an arbitrator or umpire, not being an award directing a partition, on a reference made otherwise than by an order of the court in the course of a suit”, at the rate of 3% of the amount of value of the property to which the award relates as set forth in such award.

Costs also include the payment of fees of counsel, arbitrators and umpire. An arbitrator or umpire may refuse to deliver his or her award except on payment of the fees demanded by him or her, and the court is vested with power to order such payment of fee by the party concerned. Under Section 38 of the Arbitration Act, the court may also make such orders as it thinks fit with respect to the costs of an arbitration where any question arises in this respect.

Costs of Enforcing a Foreign Award

In respect of foreign arbitral awards, Article III of the Convention specifically provides that each Contracting State shall enforce arbitral awards in accordance with the rules of procedure of the territory where the award is relied upon and that “there shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral award to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards”. Therefore, the costs described in the preceding paragraph associated with the enforcement of domestic arbitral awards are applicable to foreign arbitral awards also.

A foreign arbitral award is also required, by Article IV of the New York Convention, to be filed in the official language of the executing court; therefore, a party seeking its enforcement will also bear the costs of translation and associated certification, as required.

Consularisation/Notarisation of Documents

If a foreign party (individual or corporate entity) seeks representation for such enforcement through an attorney in Pakistan, the documents authorising such representation, including incorporation documents in the case of a corporate entity, require consularisation and notarisation/apostille from the embassy concerned or the related consulate of Pakistan in the country or area in which such individual or corporate entity is located, and that party bears the costs therefor. Such verified documents, upon their receipt in Pakistan, may require affixation of prescribed stamps for the duty payable on them.

Time in Respect of Enforcement of a Domestic Award

Section 17 of the Arbitration Act provides that after a domestic award is filed, a party that wishes for the award to be made a rule of the court may apply at any time therefrom. Section 37 of the Arbitration Act provides for the Limitation Act, 1908 (“Limitation Act”) to apply to arbitrations as they apply to proceedings in court.

The time limits prescribed by the Limitation Act that are pertinent to domestic awards are:

  • service of notice that an award has been filed in court – 90 days (Article 178 of the First Schedule read with Section 3 of the Limitation Act);
  • filing of an application to set aside an award – 30 days (Section 30 of the Arbitration Act); and
  • filing of an application to have the award remitted – 30 days (Section 16 of the Arbitration Act).

If the court remits an award for reconsideration, the court shall fix the time within which the arbitrators/umpire shall submit their decision to the court.

Section 15 of the Arbitration Act also allows the court to modify an award.

Appeal From Orders in Respect of the Enforcement of a Domestic Award

The Arbitration Act provides for one appeal (and one further appeal to the Supreme Court) against specific orders including an order modifying or correcting an award, or an order on an award stated in the form of a special case, setting aside or refusing to set aside an award and superseding an arbitration (Section 39). 

The time limit for filing an appeal and all other applications, replies, etc will be governed by the Limitation Act read along with the procedurally mandated limitations in the CPC.

Final Award to be Made a Rule of the Court

Where the court sees no cause to remit or set aside an award, the court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award followed by a decree from which no appeal shall lie except on the ground that it is in excess of or not otherwise in accordance with the award (Section 17 of the Arbitration Act).

The enforcement of a domestic award can take from a few months to several years depending on the time consumed in deciding on objections, applications, appeals, etc.

Refer to 4.4 Process of Enforcing Arbitral Awards for statutory appeals available to a party resisting the enforcement of a foreign arbitral award.

Refer to 4.4 Process of Enforcing Arbitral Awards.

Challenge to a Domestic Award

A challenge to the enforcement of a domestic award under the Arbitration Act may be in the form of seeking for it to be remitted (under Section 16) or to be set aside (under Sections 30 and 33).

Section 33 provides that a party to an arbitration agreement may make an application to the court challenging the existence or validity of an award.

Challenge to a Foreign Award

Section 7 REAFA 2011 provides that an application seeking enforcement may not be refused except in accordance with Article V of the Convention.

Article V(1) of the Convention provides that the courts may refuse the recognition and enforcement of an award where a party against which it is invoked furnishes proof that:

  • the award is invalid by reason of incapacity of the parties, or the award is invalid under the law of the country to which the agreement is subject or where the award was made; or
  • the party was not issued notice and hence was unable to present its case; or
  • the award does not conform to the scope of the arbitration agreement; or
  • the composition of the arbitral authority was not in accordance with the agreement or law of the country where the award was made; or
  • the award is not yet binding or has been set aside or suspended by a competent authority of the country in which or under the law of which the award was made.

Public Policy Exception

Article V(2)(b) of the Convention provides that recognition and enforcement of a foreign arbitral award may be refused where it is contrary to the public policy of a contracting country. The public policy exception has consistently been interpreted restrictively by the superior courts in Pakistan.

Article VI of the Convention provides that if an application for setting aside or suspension of the award has been made to a competent authority as referred to in Article V(1)(e), the court before which enforcement of an award is sought may adjourn the decision on enforcement of the award and, upon an application by a party seeking enforcement, direct the other party to give suitable security therefor.

Asma Hamid Associates

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+92 42 36285010

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Law and Practice in Pakistan

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Asma Hamid Associates (AHA) is a disputes-focused practice that caters to local and foreign clients who seek personalised and niche legal services in Pakistan. Its roots in Lahore, and its alliance with renowned lawyers in Karachi, Islamabad and Peshawar and international law firms, make AHA a one-stop solution for clients. Asma and her team have a deep working knowledge and vast practical experience of representing clients before the superior courts, civil courts, tribunals, authorities and law enforcement agencies. Asma is an Advocate of the Supreme Court of Pakistan and former Advocate General of Punjab known for her dispute resolution and litigation practice.