![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales High Court (Commercial Court) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Dallah Real Estate and Tourism Holding Co v The Ministry of Religious Affairs, Government of Pakistan (Rev 1) [2008] EWHC 1901 (Comm) (01 August 2008) URL: http://www.bailii.org/ew/cases/EWHC/Comm/2008/1901.html Cite as: [2008] EWHC 1901 (Comm), [2008] 2 Lloyd's Rep 535, 121 Con LR 138, [2009] 1 All ER (Comm) 505 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
THE
HIGH COURT
OF
JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
![]() ![]() Strand, London, WC2A 2LL |
||
B e f o r e :
HONOURABLE MR JUSTICE AIKENS
____________________
![]() ![]() ![]() ![]() |
Claimant |
|
- and - |
||
![]() ![]() |
Defendant |
____________________
the
Claimant
Toby Landau QC and Patrick Angénieux (instructed by Watson Farley & Williams, Solicitors, London) for the
Defendant
Hearing dates: 8th, 9th and 10th July 2008
____________________
OF
JUDGMENT
Crown Copyright ©
Mr Justice Aikens:
A. The
parties and
the
background to
the
relevant contracts
"Any dispute or differenceof
any kind whatsoever between
the
Trust and
Dallah
arising out
of
or in connection with this Agreement shall be settled by arbitration held under
the
Rules
of
Conciliation and Arbitration
of the
International Chamber
of
Commerce, Paris, by three arbitrators appointed under such Rules".
B. The
Dispute,
the
subsequent litigation in
Pakistan
and
the
ICC arbitration
"However, since you have failed to submitthe
specifications and drawings for
the
approval
of the
Trust to date you are in breach
of
a fundamental term
of the
Agreement which tantamounts (sic) to a repudiation
of the
whole Agreement which repudiation is hereby accepted.
Moreover,the
effectiveness
of the
Agreement was conditional upon your arranging
the
requisite financing facility amounting to US$ 100,000,000,00 within 30 days
of the
execution
of the
Agreement and your failure to do so has prevented
the
Agreement from becoming effective and as such there is no Agreement in law.
This is without prejudice tothe
rights and remedies which may be available to us under
the
law".
"Moreoverthe
things done during
the
Ordinance can be sued and can sue by
the
parent department for whom this Ordinance was issued by
the government
and that was
ministry
for
religious
affairs. Suit should have been filed by
the Ministry of religious
affairs…..
But before parting with this Order, I observe thatthe
liabilities and duties against
the
present defendant can be agitated by
the Ministry of Religious
affairs
government of Pakistan
if any. Since
the
suit has not been filed by
the
legal person,
the
present plaintiff is no more a plaintiff in
the
eye
of
[
the
] law. Suit is dismissed. File be consigned to
the
record room".
"18. On 19.01.97the
Secretary,
Ministry of Religious
Affairs
of the
Respondent [ie.
the
MORA], acting on behalf
of
itself as principal and on behalf
of the
Trust, purported to repudiate
the
Agreement….
19.The
letter
of
19.01.97 amounted to an unlawful repudiation
of the
Agreement and evinced an intention on
the
part
of the
Respondent [ie.
the
MORA] not to be bound by its terms.
The
Respondent continues to refuse to implement
the
Agreement. Accordingly
the
Claimant has accepted
the
Respondent's repudiation".
"Thatthe
cause
of
action accrued to
the
plaintiff against
the
defendant at Islamabad firstly when
the
defendant entered into
the
Agreement and thereafter when it defaulted in fulfilling
the
pre-conditions
of the
Agreement and
the
same was repudiated and finally in January 1997 when it refused to treat
the
Agreement as repudiated".
The
claim was verified by Mr Lutfallah Mufti, this time in his capacity as Secretary, MORA.
"I therefore do find thatthe
learned trial judge has very correctly found that
the
petitioner GoP is neither a party to
the
said agreement nor it claims under any
of the
parties to
the
same. This being so
the
petitioner cannot be proceeded against under
the
said arbitration agreement which forms part
of the
said agreement dated 10.9.1996".
"Does an agreement to arbitrate underthe
ICC Rules exist between
the
Claimant [ie.
Dallah
] and
the
Defendant [ie.
the
GoP] and does
the
Arbitral Tribunal have jurisdiction in respect to
the
Defendant over
the
claims submitted by
the
claimant in
the
present case?".
C. The
ICC First and Second Partial Awards and
the
Final Award
"Arbitral as well as judicial case-law has widely recognised that, in international arbitration,the
effects
of the
arbitration clause may extend to parties that did not actually sign
the
main contract but were directly involved in
the
negotiation and performance
of
such contract, such involvement raising
the
presumption that
the
common intention
of
all parties was that
the
non – signatory party would be a true party to such contract and would be bound by
the
arbitration agreement".[15]
"13. Certainly, manyof the
above mentioned factual elements, if isolated and taken into a fragmented way, may not be construed as sufficiently conclusive for
the
purpose
of
this section.
However, Dr Mahmassani believes that when allthe
relevant factual elements are looked into globally as a whole, such elements constitute a comprehensive set
of
evidence that may be relied upon to conclude that
the
Defendant is a true party to
the
Agreement with
the
Claimant and therefore a proper party to
the
dispute that has arisen with
the
Claimant under
the
present arbitration proceedings.
Whilst joining in this conclusion Dr Shah and Lord Mustill note that they do so with some hesitation, considering thatthe
case lies very close to
the
line."
D. The
proceedings for recognition and enforcement
of the
Final Award and
the
application
of the
GoP to set them aside
"A successful challenge tothe
award(s) in France would have provided
the
[GoP] with a ground to resist enforcement in England on
the
basis
of
section 103(2)(f)[20]
of the
Arbitration Act 1996. This process in itself took a substantial amount
of
time….Having carefully considered
the
advice provided by its French lawyers, [
the
GoP] has decided not to challenge
the
award(s) in France".
E. The
Provisions
of the
New York Convention 1958 and
the
Act
"…the
arbitration agreement was not valid under
the
law to which
the
parties subjected it or, failing any indication thereon, under
the
law
of the
country where
the
award was made".
F. The
Issues raised on
the
application and
the
parties' positions on them.
G. Issue One: The
correct construction
of
section 103(2)(b)
of the
Act.
As I have already pointed out, under English law, if parties have agreed to submit future disputes to arbitration, then when a dispute arises and they submit that particular dispute to specific arbitrators, it gives rise to a further arbitration agreement, commonly called "the
reference to arbitration".[33] This is sometimes called
the
doctrine
of
"double separability". Although other systems
of
law draw a distinction between
the
underlying arbitration agreement and
the
individual reference, unlike English law they do not analyse it in terms
of
separate contracts which might have distinct governing laws. Article
V of the
Convention expressly distinguishes between
the
underlying arbitration agreement and
the
individual reference. Article
V
(a) speaks
of
"
the
agreement referred to in Article II" and "
the
said agreement is not valid".
The
cross – reference to Article II indicates clearly that
the
"arbitration agreement" being referred to in Article
V
(a) is
the
underlying arbitration agreement. In contrast, Article
V
(c) refers to "
the
submission to arbitration", which is clearly intended to point to
the
individual reference
of the
present dispute between
the
parties. This analysis
of the
Convention is supported by
the
authoritative commentary on
the
Convention by Van den Berg, published in 1981.[34]
Imagine party A is the
party against whom an award is invoked.
The
question is: if party A succeeds in
the
argument that it is not bound by
the
arbitration agreement, then does it follow that, for
the
purposes
of
section 103(2)(b),
the
relevant arbitration agreement is therefore "not valid" as between
the
party wishing to enforce
the
award and party A? I was initially a little sceptical
of
Mr Landau's submission that this type
of
argument was covered by section 103(2)(b). My first reaction would be to interpret
the
phrase "
the
arbitration agreement is not valid" as giving rise, not to questions
of
who is bound by it, but to issues concerning formal validity, such as whether, under
the
applicable law
of the
arbitration agreement, it had to be in a certain form, or signed by
the
parties and such like matters.[36] However, once Mr Landau referred me to
the
analysis
of
Mance LJ in Dardana Ltd
v
Yukos Oil Co and Petroalliance Services Co Ltd,[37] I accepted that I must be wrong and was, in any case, bound by Court
of
Appeal authority. I will not therefore set out here my own analysis. I have done so in Annex 6 to this judgment for anyone who is interested.
On this issue, counsel agree that the
part
of
Article
V
(1)(a)
of the
Convention which is dealing with
the
validity
of the
arbitration agreement establishes two conflict
of
laws rules.
The
first is
the
primary rule
of
party autonomy;
the
parties can choose
the
law that governs
the
validity
of the
arbitration agreement. In default
of
that agreement,
the
law by which to test validity is that
of the
country where
the
award to be enforced was made. Van den Berg, in his authoritative commentary on
the
Convention[38] states that it has never been questioned that these are to be treated as "uniform" conflict
of
laws rules. Therefore, logically,
the
reference to "
the
law
of the
country where
the
award was made" in Article
V
(1)(a)
of the
Convention and
the
same words in section 103(2)(b)
of the
Act, must be directed at that country's substantive law rules, rather than its conflicts
of
law rules.[39] In this case, it means I must have regard to French substantive law and not its conflict
of
laws rules. In this regard, I note that paragraph 2.6
of the
Joint Memorandum
of the
French Law experts states
the
following:
"Where a French court is called upon to decidethe
challenge
of
an arbitral award rendered by a tribunal seated in France, it has not to apply French conflict
of
laws in order to determine whether
the
arbitral tribunal has jurisdiction".
H. Issue Two: When a party challenges the
recognition and enforcement
of
a Convention award under section 103(2)(b), what is
the
scope
of the
enquiry that
the
court has to undertake?
I. Issue Three: What are the
principles
of
French law by which to decide whether
the
GoP was and is bound by
the
arbitration agreement in clause 23
of the
Agreement?
"Under French law, in order to determine whether an arbitration clause upon whichthe
jurisdiction
of
an arbitral tribunal is founded extends to a person who is neither a named party nor a signatory to
the
underlying agreement containing that clause, it is necessary to find out whether all
the
parties to
the
arbitration proceedings, including that person, had
the
common intention (whether express or implied) to be bound by
the
said agreement and, as a result, by
the
arbitration clause therein.
The
existence
of
a common intention
of the
parties is determined in
the
light
of the
facts
of the
case. To this effect,
the
courts will consider
the
involvement and behaviour
of
all
the
parties during
the
negotiation, performance and, if applicable, termination
of the
underlying agreement."
"When a French court has to determinethe
existence and effectiveness
of
an arbitration agreement over
the
parties to an arbitration which is founded upon that agreement, and when for these purposes it must decide whether
the
said agreement extends to a party who was neither a signatory nor a named party thereto, it examines all
the
factual elements necessary to decide whether that agreement is binding upon that person".
"According to international usage, an arbitration clause inserted in an international contract has a validity and an effectivenessof
its own, such that
the
clause must be extended to parties directly implicated in
the
performance
of the
contract and in any disputes arising out
of the
contract, provided that it has been established that their respective contractual situations and existing usual commercial relations raise
the
presumption that they accepted
the
arbitration clause
of
whose existence and scope they were aware, irrespective
of the
fact that they did not sign
the
contract containing
the
arbitration agreement." [49]
"Under French law,the
existence, validity and effectiveness
of
an arbitration agreement in an international arbitration need not be assessed on
the
basis
of
national law, be it
the
law applicable to
the
main contract or any other law and can be determined according to rules
of
transnational law. To this extent, it is open to an international arbitral tribunal
the
seat
of
which is in Paris to find that
the
arbitration agreement is governed by transnational law".
J. Issue Four: Pakistani law: does Article 173 of the Pakistan
Constitution state a mandatory rule that
the
State
of Pakistan
can only validly enter into and be bound by an agreement provided that such agreement is made in
the
name
of the
President
of Pakistan
and is executed on his behalf?
"CONSTITUTIONOF PAKISTAN
CHAPTER 3 –THE
FEDERAL
GOVERNMENT
99. (1) All executive actionsof the
Federal
Government
shall be expressed to be taken in
the
name
of the
President.
(2)The
President shall by rules specify
the
manner in which orders and other instruments made and executed in his name shall be authenticated and
the
validity
of
any order or instrument so authenticated shall not be questioned in any court on
the
ground that it was not made or executed by
the
President.
CHAPTER 3 - PROPERTY, CONTRACTS LIABILITIES AND SUITS
173. …….
(3) All contracts made inthe
exercise
of the
executive authority
of the
Federation or
of
a Province shall be expressed to be made in
the
name
of the
President, or, as
the
case may be,
the
Governor
of the
Province, and all such contracts and all assurances
of
property made in
the
exercise
of
that authority shall be executed on behalf
of the
President or Governor by such persons and in such manner as he may direct or authorize."
"Article 99 and 173(1)(3)of the
Constitution require all
the
executive actions, including contracts made on behalf
of
Federal
Government
to be expressed in
the
name
of the
President. Any executive action, contract or rescission thereof, not so expressed in
the
name
of the
President, would be void. Appellants have neither referred to any letter by
the
President, equipping appellant No 2 with
the
authority to pass any such order nor have they produced any document
of
authority before
the
learned Single Judge in Chamber or during
the
course
of
he hearing
of
this appeal, as such we are unable to attach any kind
of
regularity or presumption as urged by learned counsel for
the
appellants…..This brings us to conclude that original contract having been expressed in
the
name
of the
President, could be rescinded only by
the
President and by no one else, below his rank, without authority from him".
K. Issue Five: Applying the
relevant principles
of
French law, including any relevant principles
of
"transnational law" and Pakistani law, what is
the
answer to whether
the
GoP is bound by
the
arbitration clause in
the
Agreement?
"Such letter is very significant because it confirmed inthe
clearest way possible, that [
the
GoP] after
the
elapse
of the
Trust, regarded
the
Agreement with [
Dallah
] as its own and considered itself as a party to such Agreement, and as such, was entitled to exercise all rights and assume all responsibilities provided for under such Agreement".
L. Issue Six: Has the
GoP satisfied
the
burden
of
proving, for
the
purposes
of
section 103(2)(b), that
the
arbitration agreement in clause 23 is not valid?
M. Issue Seven: Is there an issue estoppel arising out of the
First Partial Award that prevents
the
GoP from being able to argue that
the
arbitration agreement is not valid for
the
purposes
of
section 103(2)(b)
of the
Act?
"However,the
question that must now concern us is not whether
the
arbitrators were right, but whether
the
first award finally disposed
of the
issue as far as these parties are concerned. In our view it did. Under Lithuanian law an arbitration clause is regarded as an autonomous agreement which gives rise to rights and obligations which exist independently
of the
contact within which it is found, and an agreement to arbitrate under
the
ICC rules confers on
the
arbitrators jurisdiction to decide whether they have jurisdiction in any given case. In
the
present case by agreeing to ICC arbitration
the
parties conferred on
the
arbitrators jurisdiction to determine that question and are therefore bound by their award".
N. Issue Eight: Is there a residuary discretion under section 103 of the
Act to recognise and enforce
the
Final Award, even if
the
ground in section 103(2)(b) is proved and there is no issue estoppel operating against
the
GoP?
O. Overall Conclusions
ANNEX 1
"MEMORANDUMof
UNDERSTANDING
THIS Memorandumof
Understanding is made this 24 July 1995, between
the
President
of the
Islamic Republic
of Pakistan
through
the Ministry of Religious
Affairs
Government of Pakistan
. ……….
Of the
first part and
Dallah Real Estate
&
Tourism Holding Company
, a
Company
duly organized and existing under
the
laws
of the
Kingdom
of
Saudi Arabia,……
of the
second part.
WHEREAS GOP is interested in taking on lease reliable housing facilities inthe
holy city
of
Makkah, Kingdom
of
Saudi Arabia, for Pakistani pilgrims whilst performing Hajj and Umra; and
WHEREASDallah
has agreed to acquire
the
necessary
real estate
, construct
the
required structures and buildings for
the
purpose and lease
the
same to GOP.
NOW, THEREFORE, in considerationof the
mutual covenants and conditions hereinafter set forth,
the
parties hereto agree as follows:
1.Dallah
shall acquire within
the
holy city
of
Makkah
the
lands necessary for
the
development and construction
of
housing facilities sought by GOP for Pakistani pilgrims whilst performing Hajj and Umra, as more specifically described in
the
Schedule A attached hereto, and develop, construct and complete said housing facilities thereon.
2. Thatthe
total cost
of the
lands and
the
housing facilities to be constructed thereon by
Dallah
shall not exceed U.S.$ 242 million ($ 242,000,000.00), as itemized in
the
Schedule-B attached hereto.
3. Upon completionof the
housing facilities
Dallah
shall demise and lease them to
the
GOP along with
the
land and GOP shall take
the
said facilities and land on such lease for a term
of
ninety-nine (99) years subject to
Dallah
arranging
the
necessary financing for GOP on terms approved by GOP in accordance with
the
provisions
of
this Agreement ("Lease Financing").
4. Within thirty (30) daysof the
execution hereof,
Dallah
shall prepare and submit to GOP for its approval,
the
terms and conditions
of the
proposed lease ("
the
Lease") and
the
detailed plan for financing
of the
same ("
the
Financial Plan"). Approval and acceptance
of the
Lease and
the
Financial Plan by GOP will be communicated in writing to
Dallah
.
The
date
of
receipt
of
such approval by
Dallah
will be
the
Approval Date. Where such approval and acceptance is not conveyed by GOP within ninety days
of
submission
of
terms and conditions
of the
proposed lease and detailed financing plan by
Dallah
to GOP or GOP conveys its disapproval or non-acceptance
of
such terms and conditions
of
lease and financing plan, no liability or claim shall be incurred by either party.
5.The
Lease Financing to be arranged and organized by
Dallah
as per
the
approved Financial Plan will be secured by
the
Borrower designated by GOP under
the
Sovereign Guarantee
of
GOP.
6. Within sixty (60) daysof the
Approval Date,
Dallah
shall prepare and submit to GOP detailed specifications and drawings
of the
housing facilities based upon
the
requirements
of
GOP as contained in Schedule A. Within twenty-four (24) months from
the
date that GOP approves in writing said specifications and drawings,
Dallah
shall develop, construct, complete in all respects and hand over vacant possession
of the
housing facilities to GOP upon execution and registration
of the
lease.
………..
19. This Agreement shall be binding upon and shall enure tothe
benefit
of the
parties hereto and to
the
benefit
of
their successors and permitted assigns to
the
extent that such enurement does not violate any specific provisions
of the
Lease and applicable Saudi Arabian and Pakistani laws.
………..
23. This Agreement shall be governed bythe
applicable laws and regulations
of the
Kingdom
of
Saudi Arabia.
24. Any dispute betweenthe
parties hereto as to
the
interpretation
of
this Agreement or in respect
of
any matter arising under, out
of
or in connection with this Agreement shall be resolved in accordance with
the
Saudi laws and regulations for
the
time being in force relating to arbitration through an arbitration committee composed
of
three arbitrators, GOP shall appoint one arbitrator and
Dallah
shall appoint one arbitrator and
the
two arbitrators so appointed shall appoint
the
third arbitrator who shall preside over
the
arbitration committee.
The
arbitration proceedings shall be held in Jeddah or such other place as
the
parties may agree and
the
decision
of the
arbitration committee shall be final and binding upon
the
parties hereto.
25. Tothe
extent that GOP may be entitled in any jurisdiction to claim for itself immunity in respect
of
its obligations under this Agreement itself from any proceedings, suit, award, execution, attachment (whether in aid
of
execution, before award, judgment or otherwise) or other legal process or to
the
extent that in any jurisdiction there may be attributed such immunity (whether or not claimed).
26. GOP hereby irrevocably waives any objection now or hereafter tothe
siting
of the
venue
of
any arbitration, action, suit or proceeding in any such place or court as is referred to in Article 24 and any claim that any such action, suit or arbitration proceedings have been brought in an inconvenient forum under such proceedings are brought outside Saudi Arabia.
27. GOP also hereby consents generally in respectof
any proceedings arising out
of
or in connection with this Agreement to
the
giving
of
any relief related thereto or
the
issue
of
any process in connection with such proceedings including, without limitation,
the
making, enforcement or execution against any award, order or judgment which may be made or given in such proceedings.
………….."
"PART 1
Acts, Ordinances, President's Orders and Regulations
GOVERNMENT OF PAKISTAN
MINISTRY OF
(Law and Justice Division)
Islamabad,the
31st January 1996
No. F. 2(1)/96-Pub. –The
following Ordinance made by
the
President is hereby published for general information:-
ORDINANCE NO. VIIOF
1996
AN
ORDINANCE
To provide forthe
establishment
of
an Awami Hajj Trust
WHEREAS it is expedient to provide forthe
establishment
of
an Awami Hajj Trust to mobilize savings from
the
pilgrims desirous
of
performing Hajj and investment thereof in
the
Islamic modes
of
investment and for facilitating Hajj operations and matters connected therewith and incidental thereto:
AND WHEREASthe
National Assembly is not in session and
the
President is satisfied that circumstances exist which render it necessary to take immediate action:
(67)
……
68THE
GAZETTE
OF PAKISTAN
, EXTRA, JA:
NOW THEREFORE, exerciseof the
powers conferred by clause (1)
of
Article 89
of the
Constitution
of the
Islamic Republic
of Pakistan
,
the
President is pleased to make and promulgate
the
following Ordinance:-
1. Short title, extent and commencement. –
(1) This Ordinance may be calledthe
Awami Hajj Trust Ordinance, 1996.
………
2. Definitions – In this Ordinance unless there is anything repugnant inthe
subject or context:
(a) "Board" meansthe
Board
of
Trustees
of the
Awami Hajj Trust constituted under section 5;
(b) "Fund" meansthe
Awami Hajj Savings, and Investment Fund established under section 10;
(c) "Haji" or "Hujjaj" means a person or persons who have performed, or are intending to proceed to perform Hajj;
(d) "Hajj" means performanceof
Hajj by visiting Makkah and Madina in Saudi Arabia in accordance with
the
Injunctions
of
Islam as laid down in Holy Quran and Sunnah
of the
Holy Prophet (peace be upon him):
(e) "Managing Trustee" meansthe
Secretary,
Religious
Affairs Division,
Government of Pakistan
, or such other person
of
integrity having a good record
of
fiduciary conduct and expertise in financial management and knowledge
of
Shariah as
the
Federal
Government
may appoint to perform
the
functions
of the
Managing Trustee;
(f) "member" means an intending Haji who wishes to save and financethe
Hajj expenses by becoming a member
of the
Fund;
(g) "Trust" meansthe
Awami Hajj Trust established under section 3; and
(h) "Trustee Bank" means a bank or financial institution appointed bythe
Board to collect deposits from embers, maintain their accounts in
the
Fund and make investment thereof in accordance with
the
directions
of the
Board.
3. Establishmentof the
Trust –
(1) As soon as may be, afterthe
commencement
of
this Ordinance,
the
Federal
Government
shall, by notification in
the
Official Gazette, establish a trust to be known as
the
Awami Hajj Trust.
(2)The
Trust shall be a body corporate having perpetual succession and a common seal with power to acquire, hold and dispose
of
property, and may by its name, sue and be sued.
(3)The
headquarters
of the
Trust shall be at Islamabad and it may establish its regional offices in such other places as
the
Federal
Government
may determine.
4. Purposes and objectsof the
Trust –
The
purposes and objects
of the
Trust shall be to:
(a) mobilize savings from members;
(b) invest savingsof the
members in appropriate schemes yielding maximum returns and credit profits accrued therefrom in
the
members' accounts;
(c) defraythe
expenses
of
Hajj and individual members out
of
their savings and profit accrued thereon; and
(d) adopt measures for facilitatingthe
performance
of
Hajj by members.
5. Boardof
Trustees –
(1)The
general direction and administration
of the
Trust and its affairs shall vest in
the
Board
of
Trustees consisting
of
-
(i) Federal Minister forReligious
Affair …. Chairman
(ii) Federal Minister for France …………….. Member
(iii) Chairman, Councilof
Islamic Ideology … Member
(iv) Deputy Chairman, Planning Commission ... Member
(v
) Secretary,
Ministry of
Finance ………….. Member
(vi) Secretary,Religious
Affairs Division,
Government of Pakistan
, if he is not Appointed as
the
Managing Trustee ….... Member
(vii) Chairman,Pakistan
Banking Council …… Member
(viii) Managing Trustee ……………………….. Member
(2)The
Secretary,
Religious
Affairs Division,
Government of Pakistan
shall act as Secretary
of the
Board.
6. Powers and functionof the
Board -
The
powers and functions
of the
Board shall be to –
(a) provide guidelines tothe
Managing Trustee for managing Hajj savings and investment operations in an efficient and productive manner;
(b) approvethe
budget
of the
Managing Trustee relating to
the
Fund;
(c) review and approvethe
audited income and expenditure
of the
Fund;
(d) approve implementation plans for functions assigned tothe
Trustees bank;
(e) adopt measures for promotion and welfareof the
Hujjaj during Hajj operations; and
(f) perform such other functions as may be assigned to it bythe
Federal
Government
for
the
purposes
of
this Ordinance.
…………
11. Reports –The
Managing Trustee shall, by
the
end
of
each financial year or as and when
the
Federal
Government
may direct, submit annual audited report
of
Fund to
the
Board and such other reports about its activities as
the
Board or
the
Federal
Government
may direct.
12. Rules – (1)The
Board may, with
the
prior approval
of the
Federal
Government
, make rules for carrying out
the
purposes
of
this Ordinance.
(2) Without prejudice tothe
foregoing powers, such rules may provide for –
(a)the
procedure for deposit
of
amounts in
the
Fund and its utilization for defraying Hajj expenses
of the
members;
(b) determinationof
Hajj expenses; and
(c) such other activities as may facilitatethe
performance
of
Hajj in conformity with
the
purposes
of the
Trust.
……… "
"AGREEMENT
THIS AGREEMENT is made this tenth dayof
September, 1996 between
the
AWAMI HAJJ TRUST, established under section 3
of the
Awami Hajj Trust Ordinance, 1996 (Ordinance No. VII
of
1996)…….
of the
first part and
Dallah Real Estate
and
Tourism Holding Company
, a
Company
duly organised and existing under
the
laws
of the
Kingdom
of
Saudi Arabia,……
of the
second part.
WITNESSETH
WHEREASthe
Trust is interested in leasing reliable housing facilities in
the
holy city
of
Makkah, Kingdom
of
Saudi Arabia, for Pakistani pilgrims whilst performing Hajj and Umra; and
WHEREASDallah
owns adequate and appropriate
real estate
at a distance
of
1500 metres from
the
Haram, and has agreed to construct
the
required structures and buildings on
the
same for
the
purpose and to lease them to
the
Trust.
NOW THEREFORE, in considerationof the
mutual covenants and conditions hereinafter set forth,
the
parties hereto agree as follows:
1.Dallah
shall undertake, within
the
holy city
of
Makkah, development and construction necessary for
the
accommodation
of
45,000 Pakistani pilgrims (on
the
basis
of
2.5 cu. Metres per person) whilst performing Hajj and Umra on a part
of the
plot
of
land owned by
Dallah
in
the
Al-Misfalah district
of
Makkah comprising an area
of
22,000 square metres which is at a distance
of
1500 metres from
the
Haram as identified and described in Schedule "A" attached hereto (referred to as "
the
Housing").
2.The
total leased value
of the
said land area
of
22,000 square metres and
the
total construction cost
of the
Housing is computed at US$210,000,000 and US$135,000,000 respectively aggregating US$345,000,000 (U.S.$ Three Hundred and Forty-five Million only), out
of
which
the
Trust shall pay a lump sum
of
U.S.$100,000,000 (U.S. Dollars One Hundred Million only) to
Dallah
by way
of
advance ("
the
Advance Lease Payment") within thirty (30) days from
the
date
of
execution
of
this Agreement by
the
Parties, subject to (i)
Dallah
arranging through one
of
its affiliates a U.S. Dollars 100,000,000 (U.S.$ One Hundred Million only) Financing Facility for
the
Trust against a guarantee
of the Government of Pakistan
, (ii)
Dallah
submitting to
the
Trust a Performance Bond covering
the
Advance Lease Payment in
the
format attached as Schedule "B" to this Agreement. (iii) A counter guarantee issued by
the
Trust and Al-Baraka Islamic Investment Bank, E.C., Bahrain, (Hereinafter referred to as
the
(Trustee Bank") appointed by
the
Board
of
Trustees pursuant to Section 8
of the
Awami Hajj Trust Ordinance, 1996 in favour
of the Government of Pakistan
.
3. This Agreement shall come into effect onthe
date that
Dallah
receives from
the
Trust
the
Advance Lease Payment and submits
the
aforesaid Performance Bond to
the
Trust ("Date
of
Effectiveness").
4.Dallah
shall develop, construct and complete
the
Housing in accordance with such detailed specifications and drawings that shall be approved by
the
Trust within ninety (90) days
of the
execution
of
this Agreement. Upon such approval they will be signed by both parties. Such signed documents will be referred to herein as "
the
Approved Specifications". Within twenty-four (24) months from
the
Date
of
Effectiveness hereof
Dallah
shall make available to
the
Trust
the
Housing, subject to execution and registration
of the
Lease Agreement specified in Clause 5(a) below, for occupation by Pakistani pilgrims, complete in all respects, and prior to Dhul-qa'da 1, 1420 HIJRA.
5(a)The
Trust irrevocably and unconditionally agrees to take on lease
the
Housing for a term
of
ninety-nine (99) years in terms
of the
draft lease contained in Schedule "C" hereto ("
the
Lease Agreement") for which entire term
the
Lease Payments shall be made in strict accordance with either
of the
two options specified in
the
attached Schedule "D" hereto. On
the
completion
of the
Housing as aforesaid
the
Lease Agreement shall be executed by and between
the
parties, which will be governed by
the
provisions
of
this Agreement insofar as applicable.
………..
19. This Agreement shall be binding upon and shall enure tothe
benefit
of the
parties hereto and to
the
benefit
of
their successors and permitted assigns to
the
extent that such enurement does not violate any specific provision
of the
Lease Agreement and applicable law.
………..
23. Any dispute or differenceof
any kind whatsoever between
the
Trust and
Dallah
arising out
of
or in connection with this Agreement shall be settled by arbitration held under
the
Rules
of the
Conciliation and Arbitration
of the
International Chamber ofCommerce, Paris, by three arbitrators appointed under such Rules.
24. Tothe
extent that
the
Trust may be entitled in any jurisdiction to claim for itself immunity in respect
of
its obligations under this Agreement from any proceedings, suit, award, execution, attachment (whether in aid
of
execution, before award, judgment or otherwise) or other legal process or to
the
extent that in any jurisdiction there may be attributed such immunity (whether or not claimed),
the
Trust hereby irrevocably agrees not to claim and hereby irrevocably waives such immunity to
the
fullest extent permitted by
the
law
of
such jurisdiction.
25.The
Trust hereby irrevocably waive any objection now or hereafter to
the
siting
of the
venue
of
any arbitration, action, suit or proceeding in any such place or court as is referred to in Clause 23 and any claim that any action, suit or arbitration proceedings have been brought in an inconvenient forum.
26.The
Trust also hereby consents generally in respect
of
any proceedings arising out
of
or in connection with this Agreement to
the
giving
of
any relief related thereto or
the
issue
of
any process in connection with such proceedings including, without limitation,
the
making, enforcement or execution against any award, order or judgment which may be made or given in such proceedings.
27.The
Trust may assign or transfer its rights andobligations under this Agreement to
the Government of Pakistan
without
the
prior consent in writing
of Dallah
.
………".
ANNEX 4
The
…………..
"Article II
1. Each Contracting State shall recognize an agreement in writing under whichthe
parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect
of
a defined legal relationship, whether contractual or not, concerning a subject matter capable
of
settlement by arbitration.
2.The
term "agreement in writing" shall include an arbitral clause in a contract or an arbitration agreement, signed by
the
parties or contained in an exchange
of
letters or telegrams.
3.The
court
of
a Contracting State, when seized
of
an action in a matter in respect
of
which
the
parties have made an agreement within
the
meaning
of
this article, shall, at
the
request
of
one
of the
parties, refer
the
parties to arbitration, unless it finds that
the
said agreement is null and void, inoperative or incapable
of
being performed.
Article III
Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance withthe
rules
of
procedure
of the
territory where
the
award is relied upon, under
the
conditions laid down in
the
following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on
the
recognition or enforcement
of
arbitral awards to which this Convention applies than are imposed on
the
recognition or enforcement
of
domestic arbitral awards.
Article IV
1. To obtainthe
recognition and enforcement mentioned in
the
preceding article,
the
party applying for recognition and enforcement shall, at
the
time
of the
application, supply:
(a)The
duly authenticated original award or a duly certified copy thereof;
(b)The
original agreement referred to in article II or a duly certified copy thereof.
2. Ifthe
said award or agreement is not made in an official language
of the
country in which
the
award is relied upon,
the
party applying for recognition and enforcement
of the
award shall produce a translation
of
these documents into such language.
The
translation shall be certified by an official or sworn translator or by a diplomatic or consular agent.
"ArticleV
1. Recognition and enforcementof the
award may be refused, at
the
request
of the
party against whom it is invoked, only if that party furnishes to
the
competent authority where
the
recognition and enforcement is sought, proof that:
(a)The
parties to
the
agreement referred to in article II were, under
the
law applicable to them, under some incapacity, or
the
said agreement is not valid under
the
law to which
the
parties have subjected it or, failing any indication thereon, under
the
law
of the
country where
the
award was made; or
(b)The
party against whom
the
award is invoked was not given proper notice
of the
appointment
of the
arbitrator or
of the
arbitration proceedings or was otherwise unable to present his case; or
(c)The
award deals with a difference not contemplated by or not falling within
the
terms
of the
submission to arbitration, or it contains decisions on matters beyond
the
scope
of the
submission to arbitration, provided that, if
the
decisions on matters submitted to arbitration can be separated from those not so submitted, that part
of the
award which contains decisions on matters submitted to arbitration may be recognized and enforced; or
(d)The
composition
of the
arbitral authority or
the
arbitral procedure was not in accordance with
the
agreement
of the
parties, or, failing such agreement, was not in accordance with
the
law
of the
country where
the
arbitration took place; or
(e)The
award has not yet become binding on
the
parties, or has been set aside or suspended by a competent authority
of the
country in which, or under
the
law
of
which, that award was made.
2. Recognition and enforcementof
an arbitral award may also be refused if
the
competent authority in
the
country where recognition and enforcement is sought finds that:
(a)The
subject matter
of the
difference is not capable
of
settlement by arbitration under
the
law
of
that country; or
(b)The
recognition or enforcement
of the
award would be contrary to
the
public policy
of
that country.
………. "
ANNEX 5
"101 Recognition and enforcementof
awards
(1) A New York Convention award shall be recognized as binding onthe
persons as between whom it was made, and may accordingly be relied on by those persons by way
of
defence, set-off or otherwise in any legal proceedings in England and Wales or Northern Ireland.
(2) A New York Convention award may, by leaveof the
court, be enforced in
the
same manner as a judgment or order
of the
court to
the
same effect.
As tothe
meaning
of
"
the
court" see section 105.
…………….
102 Evidence to be produced by party seeking recognition or enforcement
(1) A party seekingthe
recognition or enforcement
of
a New York Convention award must produce—
(a)the
duly authenticated original award or a duly certified copy
of
it, and
(b)the
original arbitration agreement or a duly certified copy
of
it.
(2) Ifthe
award or agreement is in a foreign language,
the
party must also produce a translation
of
it certified by an official or sworn translator or by a diplomatic or consular agent.
103 Refusalof
recognition or enforcement
(1) Recognition or enforcementof
a New York Convention award shall not be refused except in
the
following cases.
(2) Recognition or enforcementof the
award may be refused if
the
person against whom it is invoked proves—
(a) that a party tothe
arbitration agreement was (under
the
law applicable to him) under some incapacity;
(b) thatthe
arbitration agreement was not valid under
the
law to which
the
parties subjected it or, failing any indication thereon, under
the
law
of the
country where
the
award was made;
…………………
(3) Recognition or enforcementof the
award may also be refused if
the
award is in respect
of
a matter which is not capable
of
settlement by arbitration, or if it would be contrary to public policy to recognize or enforce
the
award.
(4) An award which contains decisions on matters not submitted to arbitration may be recognized or enforced tothe
extent that it contains decisions on matters submitted to arbitration which can be separated from those on matters not so submitted.
(5) Where an application forthe
setting aside or suspension
of the
award has been made to such a competent authority as is mentioned in subsection (2)(f),
the
court before which
the
award is sought to be relied upon may, if it considers it proper, adjourn
the
decision on
the
recognition or enforcement
of the
award.
It may also onthe
application
of the
party claiming recognition or enforcement
of the
award order
the
other party to give suitable security
……….."
Note 1 Note 2 Note 3 Letter Note 4 This was, in fact, much larger than Note 5 I made it clear to counsel for Note 6 It will be recalled that he was Secretary Note 7 I say “purported” because it is agreed by Note 8 When passed, that Act would have applied to both what is now India and Note 9 This provides that “Any party to an arbitration agreement or any person claiming under him desiring to challenge Note 10 See in particular para 17 Note 11 See para 17 Note 12 FPA: Section III first para, page 19. [Back] Note 13 In English law, although perhaps not in other laws, a distinction must be drawn between two arbitration agreements. Note 14 FPA: Section III, para 4 (bis), page 20. Lord Mustill and Dr Justice Shah expressed doubts as to whether there could be a "transnational procedural law independent Note 15 FPA: Section III, para 6, page 26. [Back] Note 16 FPA : Section III, para 14, page 35. [Back] Note 17 See CPR Pt 62.18(7)(a). [Back] Note 18 Section 12(2) Note 19 As France was Note 20 That provides that a New York Convention award may be refused if Note 21 There are two related issues Note 22 As I note below, there remain issues about what is meant by Note 23 See footnote 13 above. [Back] Note 24 See paragraphs 78 – 79. [Back] Note 25 I confess that all these points were raised by me in Note 26 That is not because, as a matter Note 27 Mr Landau was prepared to accept for this application that Article 173 does not stipulate that Note 29 Joint Memorandum Note 30 Note 31 See Transcript for Day 3/page 36 line 19 to page 37 line 22. [Back] Note 32 Miss Heilbron reserves her position on any arguments on this point that might be made in any other action in this or any other jurisdiction. [Back] Note 33 See Note 34 Albert Jan van den Berg “ Note 35 See also section 103(2)(e), which refers to “ Note 36 Compare, eg. Dallal Note 37 [2002] 2 Lloyd’s Rep 326 at paragraphs 8 – 15. [Back] Note 38 Albert Jan van den Berg “ Note 39 So far as Note 40 Republique arabe d’Egypte/Southern Pacific Properties Ltd et Southern Pacific Properties (Middle East). [Back] Note 41 There are a number Note 42 For what is required to establish an issue estoppel see Issue Seven below. [Back] Note 43 FPA Section III, paragraph 6, quoted at para 49 above. [Back] Note 44 Vatier XX: Day 2/page 53 lines 5 – 15. [Back] Note 45 Joint Memorandum, paragraphs 2.9 and 2.10. [Back] Note 46 Clause 2.11 Note 47 Transcript Note 48 M. Derains XX: Day 2/page 81 line 22 to page 82 line 8. [Back] Note 49 I have amended very slightly Note 50 Day 2/page 81 lines 5 – 7. [Back] Note 51 M. Vatier XX: Day 2 page 63 lines 18 – 21; M. Derains Re – X: Day 2 page 99 line 25 to page 100 line 1. [Back] Note 52 Clause 2.12 Note 53 Vatier XX: Day 2 page 60 line 1 to page 61 line 10. [Back] Note 54 Report, paragraph 23; decision Note 55 Derains: XX Day 2 page 90 line 1 to page 92 line 1. [Back] Note 56 Joint Memorandum paragraph 2.4. [Back] Note 58 These were decided at Note 59 See: Azim Khan Note 60 Day 3/page 24 lines 1 – 7. [Back] Note 61 PLD 1957(WP) Karachi 285. [Back] Note 62 See: In re Note 63 See: Bundle B/pp 46 – 48; 51, 73; 78. [Back] Note 64 FPA Section III, paragraphs 8.3 and 8.4. [Back] Note 65 Statement paras 27 to 38. [Back] Note 66 Clause 2 Note 67 Clause 27 Note 68 Note 69 Article 23 Note 70 B/page 113. It stated: “ Note 71 Repayment was, Note 72 Letters Note 73 FPA Section III paragraph 10.2. [Back] Note 74 FPA Section III paragraph 10.3. [Back] Note 75 Note 76 FPA paragraph 11.1. [Back] Note 77 FPA: Section III paragraph 11.2. [Back] Note 78 [1983] 1 Lloyd’s Rep 424 at 426 and 428 – 9. [Back] Note 79 FPA Section III paragraph 11.2 [Back] Note 80 FPA Section III para 4 (bis). [Back] Note 82 It was agreed between counsel that Note 83 Nor is it suggested that this would be inconsistent with French ordre publique. [Back] Note 85 Joint Memorandum Note 86 Article 1476 Note 87 Cf. DSV Silo – Und Verwaltungs-gesellschaft MBH Note 88 There were interlocutory proceedings before Mr Nigel Teare QC, sitting as a Deputy Judge in Note 89 Section 9(1) provides: “Where a State has agreed in writing to submit a dispute which has arisen or may arise, to arbitration Note 94 As defined by Lord Brandon Note 95 Paragraph 103 Note 96 Paragraph 104 Note 97 Paragraph 104 and also 105 Note 98 In relation to Note 99 Paragraph 109 Note 100 Note 101 [2002] 2 Lloyd’s Rep 326 [Back] Note 102 [2006] 1 Lloyd’s Rep 701. [Back] Note 103 See paragraph 30 Note 104 I am using “French law” here as a shorthand for French law in Note 105 That is: “…an agreement in writing under which Note 106 [2002] 2 Lloyd’s Rep 326 at paragraphs 8 – 15. [Back] Note 107 See paragraphs 11 and 12 Note 108 [2002] 2 Lloyd’s Rep 326. [Back] Note 109 That is, it relied on section 103(2)(b) Note 110 This provides that where an application to set aside an award has been made to a “competent authority”, then Note 111 Paragraphs 10 and 12 Note 112 Paragraph 12 The
reason for
the
delay is explained below. [Back]
The
1973 Constitution has been modified from time to time since then. I was shown
the
details
of the
Constitution as amended up to 31 December 2003. [Back]
of
Mr Lutfullah Mufti, Secretary
of the
MORA, to Mr Hussain Luwai, President
of the
Muslim Commercial Bank Ltd in Karachi, dated 18 July 1995. It is clear from
the
context
of the
letter that “members” means members
of the
proposed Trust. [Back]
the
area contemplated in
the
MOU. [Back]
the
parties at an early stage in
the
hearing that I found this a puzzling conclusion, given
the
wording
of the
Ordinance (particularly article 3(2)) and
the
fact that
the
Trust had been created long before
the
last Ordinance “stood repealed”. I put
the
point to both experts on Pakistani law, but they both insisted that, as a matter
of
Pakistani law, once
the
Ordinance “stood repealed” because it had not been presented to Parliament in time,
the
statutory corporation that had been created by
the
Ordinance, as notified on 14 February 1996, then automatically ceased to exist. It was also
the
conclusion
of the
Civil Judge First Class in
the
first set
of
proceedings in
Pakistan
, to which I refer below. As this is an issue
of
Pakistani law, which I have to receive as a fact, it is therefore effectively an agreed fact, which it seems to me I have to accept. [Back]
of the
MORA and Secretary
of the
Board
of
Trustees
of the
Trust. He was also, by this time, Secretary
of the
Managing Trustee,
the
Al – Baraka Islamic Investment Bank. [Back]
the
Pakistani law experts that by this time
the
Trust had ceased to exist as a legal entity under Pakistani law. [Back]
Pakistan
. [Back]
the
existence or validity
of
an arbitration agreement or an award or to have
the
effect
of
either determined shall apply to
the
Court and
the
Court shall decide
the
question on affidavit…”. [Back]
of the
judgment. [Back]
of the
tribunal’s First Partial Award. [Back]
The
first is an agreement
of
parties to submit future disputes to arbitration;
the
second is
the
reference, ie.
the
agreement to refer a particular dispute to arbitration: see: Black Clawson International Ltd
v
Papierwerk Waldhof-Aschaffenburg AG [1981] 2 Lloyd’s Rep 446; Mustill & Boyd on Commercial Arbitration (2nd Ed. 1989 page 61).
The
definition
of
“arbitration agreement” in section 6
of the
Act covers both. I will have to consider this question further: see below. [Back]
of
all national laws”, in an arbitration, but appear to have accepted that
the
applicable law for
the
purposes
of
deciding
the
issue
of
who was bound by
the
“Arbitration Agreement” was not
the
procedural or “curial” law, but
the
applicable law
of the
“Arbitration Agreement”, viz. clause 23
of the
Agreement. [Back]
of the
State Immunity Act 1978 provides that
the
time for entering an appearance to proceedings against a state shall begin to run two months after
the
judgment has been received at
the Ministry of
Foreign Affairs
of the
state concerned. Paragraph 2
of the
order
of
Gloster J gave
the
GoP only 31 days after service
of the
order. [Back]
the
“seat”
of the
ICC Arbitration,
the
French courts would be
the
“supervising” courts.
The
French law experts agreed that
the
Paris Cour d’appel was
the
court with jurisdiction over any challenge to
the
awards: Joint Memorandum paragraph 2.2. [Back]
the
person against whom it is invoked proves “that
the
award has not yet become binding on
the
parties or has been set aside or suspended by a competent authority
of the
country in which, or under
the
law
of
which, it was made”. [Back]
of
Pakistani law which remained in dispute, on which counsel agreed that both sides would not adduce argument in these proceedings but would reserve their position in case there were further proceedings in this or other jurisdictions. These were: (a) whether
the
Trust was
the
“alter ego”
of the
GoP; and (b) whether
the
corporate veil
of the
Trust could be lifted and, if so, what it would reveal. [Back]
the
“arbitration agreement” and what is comprised within
the
phrase “
the
law
of the
country where
the
award was made”, in particular does it permit
the
application
of
that country’s conflict
of
laws rules or any reference to “transnational” law or
the
laws
of
any other country, such as
Pakistan
. [Back]
the
course
of
argument. [Back]
of
construction
of
section 103(2)(b),
the
English court should take account
of the
conflicts
of
law rules
of the
law
of the
country where
the
award was made, but because
the
French courts would engage in a “broad factual enquiry”, including issues
of
foreign law. [Back]
the
agreement must be in writing, in
the
narrow sense
of
that phrase. (Compare
the
definition
of
“agreement in writing” in section 5(2)
of the
Act). [Back]
of
French Law Experts: paragraph 2.4. [Back]
The
relevant part
of
Article 264
of the
Constitution provides: “Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue
of the
Constitution,
the
repeal shall not, except as otherwise provided in
the
Constitution – (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under
the
law”. [Back]
the
references given at footnote 13 above. [Back]
The
New York Arbitration Convention 1958” at pages 295 – 6 and 314 – 6. [Back]
the
agreement
of the
parties”, which must refer to
the
individual reference. [Back]
v
Bank Mellat [1986] 1 QB 441 at 455 – 6 per Hobhouse J. [Back]
The
New York Convention
of
1958 – Towards a Uniform Judicial Interpretation” (Kluwer 1981) page 291. [Back]
the
Act is concerned, further support for this conclusion might be found in section 46(2)
of the
Act, which defines “
the
law chosen by
the
parties” as “
the
substantive laws
of
that country and not its conflict
of
laws rules”. That provision is,
of
course in Part 1
of the
Act. It is said that this provision was specifically inserted to avoid
the
problems
of
renvoi: Mustill & Boyd on Commercial Arbitration (2001 Companion), page 328. See also Dicey, Morris & Collins,
The
Conflict
of
Laws (14th Ed. 2006) at para 4.034, in Vol 1 page 89 – 90. But it must be likely that
the
same approach is intended for section 103(2)(b) in Part III
of the
Act. [Back]
of
decisions
of the
Commercial Court at first instance all to this effect, following
the
decision
of
Rix J in Azov Shipping Co
v
Baltic Shipping Co (No 1) [1999] 1 Lloyd’s Rep 68. In Peterson Farms Inc
v
C&M Farming Ltd [2004] 1 Lloyd’s Rep 603 at para 18, Langley J refers to
the
many cases that have followed Rix J’s decision. Langley J states that he would follow it even if he did not agree with it, which he did. [Back]
of the
Joint Memorandum. I have assumed that this extends to emanations
of the
State, such as
the
GoP. [Back]
of
M. Vatier’s evidence: Day 2/page 48 line 24 to page 49 line 19. M. Derains agreed: Day 2/page 71 lines 6-7; page 77 line 13. [Back]
the
translation given by M. Derains in his report at paragraph 19, which he wrote in English.
The
decisions
of the
Paris Cour d’appel referred to are: decision
of
30 November 1988 (Société Korsnas Marma/ société Durand – Auzias); decision
of
14 February 1989 (Société Ofer Brothers/
The
Tokyo Marine and Fire Insurance Co Ltd et autres) ; decision
of
28 November 1989 (Compagnie tunisienne de navigation (Cotunav)/; Société Comptoir commercial André); decision
of
11 January 1990 (Orri/ Société des Lubrificant Elf Acquitaine). See also to
the
like effect
the
decision
of the
Paris Cour d’appel
of
21 October 1983 (Société Isover Saint – Gobain/ Sociétés Dow Chemicals). [Back]
of the
Joint Memorandum. Strictly speaking, as I read
the
leading decision
of the
Cour de cassation
of
6 July 2000 (Société Creighton/
Ministry of
Finance
of the
State
of
Qatar), it decides that it is consistent with ordre publique for a state entity to renounce its right to immunity from execution by entering into an arbitration clause, but it depends on
the
intention
of the
party and
the
terms
of the
clause. In that case it was held that
the Ministry of
Finance had renounced its right to immunity from execution by virtue
of
agreeing to Article 24
of the
ICC Rules
of
Arbitration. [Back]
of the
Cour de cassation
of
8 February 2000 (Société Taurus Films/Les Films de Jeudi). [Back]
the
time when
Pakistan
also consisted
of
what was East
Pakistan
, now Bangladesh. Dr Pirzada explained that in those days West and East
Pakistan
were “provinces”
of Pakistan
and each had a High Court. After 1971, what had been West
Pakistan
became one federated state, but with four provinces, each
of
which had a High Court; that remains
the
position today: Day 3/page 22 line 3 to page 23 line 18. [Back]
v
State Bank
of Pakistan
(PLD 1957 (WP) Karichi 892);
Pakistan v
Amin Agencies Ltd (PLD 1962 (WP) Karichi 467). [Back]
the
Duke
of
Wellington [1947] 1 Ch 506 at 520 per Wynn – Parry J. [Back]
of the
Agreement. [Back]
of the
Agreement. [Back]
The
arbitrators held (para 9.2
of
Section III
the
FPA) that
the
GoP was “bound” by Article 2 to give its guarantee to
the
facility to be raised by
the
affiliate
of Dallah
. This is difficult to understand, at least as a matter
of
English law. If
the
GoP is not a party to
the
Agreement, it cannot therefore be contractually bound by its terms. One cannot start out with
the
a priori proposition that it is a party, therefore it is bound, therefore it is bound by
the
arbitration agreement. That is starting with what is to be demonstrated.
The
position may be different in Saudi Arabian law, but there is no evidence that this is so, nor was there before
the
arbitrators. [Back]
of the
draft Transport and Maintenance Agreement which is at Schedule E to
the
Agreement also gives
the
Trust
the
right to assign or transfer its rights and obligations under that agreement to
the
GoP without
the
prior consent
of Dallah
. [Back]
Dallah
….will enter into an Agreement with
the
Awami Hajj Trust “Trust” for
the
following…”.
The
fax then set out
the
key matters which were later reproduced in
the
Agreement. [Back]
of
course, guaranteed by
the
GoP. [Back]
of
26 September 1996 and 4 November 1996. [Back]
The government of the
late Mrs Benazir Bhutto was replaced by that
of
Mr Nawaz Sharif: Nackvi witness statement para 69. [Back]
the
question
of
whether or not an issue estoppel binds
the
GoP must be decided according to English law principles, even though
the
findings said to give rise to
the
issue estoppel were made by an arbitral tribunal that was not purporting to apply English law. [Back]
of
French law experts: para 2.7. [Back]
of the
French New Code
of
Civil Procedure, as applied to international arbitration pursuant to Article 1500
of the
NCCP, quoted in
the
report
of
M. Derains, para 10. This is not in dispute. [Back]
v
Owners
of the
“Sennar” and 13 other ships (
The
“Sennar”) (No2) [1985] 1 WLR 490, particularly at 499, per Lord Brandon
of
Oakbrook. [Back]
the
Commercial Court, but I do not need to refer to those in detail here. [Back]
the
state is not immune as respects proceedings in
the
courts
of the
United Kingdom which relate to
the
arbitration”. [Back]
of
Oakbrook in
the
“Sennar” No 2, (supra) at page 499 E – G: “…a decision on
the
merits is a decision which establishes certain facts as proved or not in dispute; states what are
the
relevant principles
of
law applicable to such facts; and expresses a conclusion with regard to
the
effect
of
applying those principles to
the
factual situation concerned” [Back]
of the
judgment. [Back]
of the
judgment. [Back]
of the
judgment. [Back]
the
Final Award, see
the
argument under Issue Eight. [Back]
of the
judgment, citing Arnold
v
National Westminster Bank plc [1991] 2 AC 93. [Back]
The
French law experts agree that it is
the
Paris Cour d’appel that would have had jurisdiction to determine any challenge to
the
FPA: Joint Memorandum paragraph 2.2. [Back]
of the
report. [Back]
the
extended way that has been discussed under Issue Three. [Back]
the
parties undertake to submit to arbitration all or any difference which have arisen or which may arise between them in respect
of
a defined legal relationship, whether contractual or not, concerning a subject matter capable
of
settlement by arbitration”. [Back]
of the
judgment. [Back]
of the
Act. [Back]
the
court in which recognition or enforcement is sought can adjourn
the
decision on recognition or enforcement. [Back]
of the
judgment. [Back]
of the judgment. [Back]