The enforcement of international arbitration agreements and foreign awards is a subject that is dealt with by the New York Convention, 1958. In this regard, the New York Convention in Article V envisages a competent authority at every Contracting State to enforce foreign awards. To that end, the High Courts in Pakistan have been conferred the jurisdiction to deal with all enforcement actions of foreign awards. The Convention envisions no competent authority for the purpose of enforcing international arbitration agreements. Thus, the enforcement of arbitral agreements completely remains a subject of domestic law of the Contracting States. In Pakistan, the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011, is promulgated to implement the New York Convention. The relevant provisions of the Act which confer jurisdiction for enforcement of arbitration agreements are worded in a manner that has brought the High Courts across the country at conflicting opinions. One view favours the exclusive jurisdiction of the High Courts to enforce international arbitration agreements, whereas the other supports the concurrent jurisdiction of the Civil Courts to do so. This article deals with this conflict of opinions between the High Courts of Pakistan, keeping in view the requisites of domestic law besides the fundamentals of the New York Convention and the Vienna Convention on the Law of Treaties, 1969. This multipart article aims at critically analysing the question of jurisdiction faced by the courts in Pakistan with regard to enforcement of international arbitration agreements. In this first part, this article delves into case law on the point of jurisdiction as held by the Superior Courts. It then discusses the points of consistency and inconsistency in those judgments. The conclusion of this article, to be published in an upcoming issue of Dispute Resolution Journal, will evaluate the court decisions in light of domestic and international law and will set forth the correct position for the sake of harmony in legal practice in Pakistan.
Dispute Resolution Journal