1. Executive Summary

This article provides a comprehensive legal analysis of the mechanisms available for the recognition and enforcement of the judgments and arbitral awards rendered in the United Kingdom (‘UK’) within Pakistan, including a critical analysis of the associated benefits and potential drawbacks.

It outlines three primary avenues for enforcing a court judgment from the UK (an ‘English Judgment’) and explains the procedural and legal requirements for each:

1. Execution under s. 44A of the Code of Civil Procedure, 1908 (‘CPC’):

• Applicable to judgments from “superior courts” in the UK.
• Offers a streamlined process without a full trial.
• Requires submission of a certified decree and satisfaction certificate.
• Subject to six (6) exhaustive grounds for refusal under s. 13 of the CPC.

1. Civil Suit treating English Judgment as a Cause of Action:

• Usually used when the judgment is not from a “superior court.”
• Requires the judgment to be final, conclusive, and not falling under s. 13 exceptions.
• Operates under the principle of res judicata, allowing summary proceedings.

1. Civil Suit based on Original Cause of Action:

• Invoked when other mechanisms are unavailable.
• Requires a full trial with evidence and pleadings.
• More complex and time-consuming.

The article also discusses the enforcement of UK arbitral awards under the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 (‘2011 Act’), aligned with the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (‘NY Convention’).  UK arbitral awards are generally enforceable via Pakistan’s High Courts, with limited grounds for refusal under Art. V of the NY Convention.

The article concludes that Pakistan’s legal framework offers multiple, efficient pathways for enforcement, reflecting its commitment to international legal standards.

1. Enforcement of English judgments in Pakistan:

Primarily, the law in Pakistan provides three (3) distinct procedures[1] for the enforcement/execution of English judgments. These three avenues are:

1. if the judgment is rendered by the ‘superior courts’ in the UK/‘reciprocating territory’[2] (the UK qualifies as one), its execution can be directly sought under s. 44A of the CPC;
2. a civil suit can be instituted in Pakistan treating the English Judgment as a cause of action; and
3. a civil suit can be instituted in Pakistan on the basis of the original cause of action.
4. Execution under s. 44A of CPC

Amongst the available avenues for the enforcement available under the law, the procedure delineated under s. 44A of the CPC is undoubtedly the most efficient and offers an expedited process for the execution of an English Judgment in Pakistan. As per the terms stipulated in s. 44A, a person can directly seek execution of an English Judgment from the concerned District Court in Pakistan. However, it is pertinent to note that sub-section (1) of s. 44A explicitly highlights that only a decree of the “superior courts” of the UK can be enforced under s. 44A. The following courts constitute “superior courts”[3] for the territorial jurisdiction of the UK in respect of s. 44A of the CPC:

1. High Court in England;
2. Court of Session in Scotland; and

• High Court in Northern Ireland.

Filing requirements:

Once a judgment from a superior court is obtained in the UK, to seek execution in terms of s. 44A, a person must file the following before a District Court in Pakistan:

1. a certified copy of a ‘decree’ of any of the superior courts of the UK; and
2. a certificate from such superior court stating the extent to which the decree is satisfied or adjusted, if applicable.

What constitutes a “Decree” under s. 44A?

A “Decree” as elaborated in the third explanation of s. 44A includes:

1. any judgment or decree under which a sum of money is payable; and
2. a judgment or decree rendered in an appeal against the original judgment or decree[4].

Moreover, s. 44A specifically excludes the following from the purview of a decree:

1. where the sum of money payable is taxes, fines, penalties, or other charges of like nature; or
2. an arbitration award, even if it is enforceable as a judgment or decree.

Grounds for refusal:

A court executing a decree under s. 44A can refuse the execution of the decree, if the decree to be executed falls in any of the following exceptions specified under s. 13 of the CPC:

1. where it has not been pronounced by a Court of a competent Jurisdiction.
2. where it has not been given on the merits of the case. As per the binding precedents, a judgment by the consent of parties is not necessarily caught by the mischief of s. 13(b). Instead, the executing court must inevitably consider the facts of the case.[5]

• where it appears on the face of the proceedings that it is founded on an incorrect view of the international law or has failed to adequately recognize the law of Pakistan in cases where it is applicable. For instance, a foreign judgment requiring a judgment debtor to pay money in foreign exchange to the decree holder was not considered to be in ignorance of the Pakistani law. Rather, the Court held that such a judgment is in consonance with the same.[6]

1. where the proceedings in which the judgment was obtained are opposed to the principles of natural justice. A foreign judgment violates s. 13(d) if the court rendering the judgment did not include an impartial person, did not conduct the proceedings in a fair and lucid manner, was bigoted, did not act in good faith, or no reasonable notice or adequate opportunity of hearing was provided to the aggrieved party.[7]
2. where the judgment has been obtained by fraud.
3. where it upholds a claim based on the violation/breach of any law currently in effect in Pakistan.

The superior courts of Pakistan have consistently articulated that the six (6) grounds for refusal outlined under s. 13 of the CPC are exhaustive in nature, and an English or a foreign judgment may only be set aside if one or more of these specified grounds are substantiated. Furthermore, it is integral to note that Pakistani courts lack the jurisdiction to inquire/re-assess whether the conclusions recorded by English/foreign courts are supported by cogent evidence.[8]

Limitation of action:

Pursuant to the provisions of s. 44A an English judgment is accorded the same status and is treated as equivalent to a judgment/decree of a Pakistani court. Consequently, the limitation period for its execution is duly governed by the six (6) years duration stipulated under s. 48 of the CPC, mirroring the timeframe prescribed for execution of domestic decrees.

Advantages of execution under s. 44A:

The principal advantage of pursuing enforcement or execution under s. 44A lies in the elimination of the trial stage, thereby streamlining the judicial process. This statutory mechanism affords the decree-holder an opportunity to bypass the procedural complexities of initiating a full trial, facilitating swift recognition and implementation of a foreign judgment directly as per O. XXI of the CPC within the domestic legal framework.

1. Civil Suit treating “English judgment” as a cause of action

An alternate course of action for the execution of an English Judgment is through a civil suit. An individual who has secured an English Judgment can file a civil suit wherein the said English Judgment can be constituted as the cause of action.

Requirements:

For the purpose of filing a civil suit on the basis of an English Judgment, it must be established that:

1. the judgment is final and conclusive between the parties; and
2. does not fall under any of the exceptions delineated in s. 13 of CPC.

Where the aforementioned requirements are satisfied, the civil court in Pakistan, where the suit is instituted, is obligated to adhere to the findings of the English Judgment, which shall operate as res judicata. Therefore, even though a civil suit is filed/initiated, the trial is conducted in a summary manner, as the civil court remains bound by the determinations rendered by the English court.

Limitation of action:

As per the time limit prescribed in Art. 117 of the Limitation Act, 1908, a civil suit on the basis of an English judgment can be filed within six (6) years from the date of judgment.

Advantages:

In the circumstance where the judgment is not delivered by a “superior court” as contemplated under s. 44A of the CPC, an individual may avail this specific statutory mechanism to pursue the enforcement of an English Judgment. This provision allows individuals to seek recognition and execution of judgments, even if the issuing court does not fall within the category of “superior courts” and ensures effective implementation within the domestic legal framework.

1. Civil Suit on the basis of original cause of action

Another course of action for the enforcement/execution of an English Judgment in Pakistan is by way of filing a civil suit on the basis of an original cause of action in Pakistan.

Can a civil suit be filed on the same cause of action?

In terms of Pakistani law, the mere fact that an English court has given a judgment on a particular cause of action does not end such cause. Instead, the cause of action remains intact until and unless the judgment rendered in the UK has been duly enforced/executed by the judgment debtor. Therefore, such cause of action can be used to institute a civil suit.

Limitation of action

Usually, the time limitation will be similar to the time stipulation provided under the Pakistani law for initiating such a suit.

When is this mechanism invoked?

This is an inherently more complex procedure for the execution of English Judgments, and it is usually invoked in the situations where the English Judgment does not fulfill the criteria of s. 44A and s. 13 of CPC. In this process, the individual first needs to adequately establish his case by completing the stringent formalities of a trial which includes pleadings, as well as oral and documentary evidence. Consequently, once the individual manages to conclude all stages, a civil court in Pakistan would render a judgment, and then that individual can seek its execution under O. XXI of CPC.

• Enforcement of English Arbitral Awards in Pakistan

Arbitral awards made in the UK are enforceable in Pakistan under the 2011 Act. In consonance with Pakistan’s international commitment under the NY Convention, the 2011 Act was enacted with an aim of providing, inter alia, expeditious enforcement of foreign arbitral awards.

Applicability of 2011 Act on Awards made in the UK:

In terms of the pure territorial approach adopted in the 2011 Act, the seat of arbitration is the sole determining factor in respect to whether the award can be classified as a foreign arbitral award or not. Since the UK is a signatory to the NY Convention, any arbitral award made in the UK is enforceable in Pakistan under the 2011 Act.

Jurisdiction of Courts:

As per s. 3 of the 2011 Act, the High Court (of each province and the Islamabad Capital Territory) has the exclusive jurisdiction for the recognition and enforcement of foreign arbitral awards.

Requirements for filing:

As specified in s. 4 of 2011 Act read with Art. IV of the NY Convention, a party seeking recognition and enforcement of a foreign arbitral award must produce the following:

1. The duly authenticated original award or its duly certified copy;
2. The original agreement between the parties i.e., the arbitration agreement, or its duly certified copy.

Refusal of enforcement:

In terms of s. 6 of the 2011 Act, an arbitral award shall be enforced unless the award debtor proves to the satisfaction of the court that it is unenforceable under s. 7 of the 2011 Act read with Art. V of the NY Convention. The following grounds for refusal of recognition are enumerated in Art. V of the NY Convention:

1. The parties to the agreement were under some incapacity, or the said agreement is not valid;
2. 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;
3. 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;
4. The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or the law of the country where the arbitration took place;
5. 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.

Furthermore, the recognition and enforcement of an arbitral award may also be refused if:

1. The subject matter of the difference is not capable of settlement by arbitration under the law of that country;
2. The recognition or enforcement of the award would be contrary to the public policy of that country.

Pro-enforcement bias and enforcement by the courts in Pakistan:

The courts in Pakistan have adopted a consistent view that it is the duty of the courts to support, not to supplant, the arbitral process, and the ‘pro enforcement bias’ is to limit the grounds on which enforcement can be refused. Over the years, the Pakistani courts[9] have articulated the following principles in relation to enforcement of foreign arbitral awards:

1. Under the NY Convention, the court’s discretion to refuse a foreign arbitral award can only be exercised in relation to the grounds listed under Art. V. These grounds are ‘maximum level of control’ that the contracting state may exert over a foreign arbitral award.
2. The burden of proving the grounds for refusal of enforcement is on the party opposing the enforcement.
3. V(2) uses the word ‘may’ – while empowering the court to refuse enforcement of an award – this is not an affirmative obligation. Previously under the Geneva Convention, the word ‘shall’ was used.
4. Under Art. III the contracting state “shall” recognize and enforce foreign arbitral award. However, under Art. V(2) the court, “may” refuse enforcement “only” if the specified exceptions are proved.
5. The “exceptions” under Art. V are exhaustive, and these must be construed narrowly favoring the enforcement of foreign arbitral awards.
6. The court may nonetheless recognize and enforce award even if some of the exceptions exist.
7. Ground of defense that the arbitrator’s decision is erroneous in law or fact is not provided in the NY Convention. Thus, cannot be read into the same.
8. An expansive reading of “public policy” will vitiate the NY Convention. It can only be invoked where most basic notions of morality and justice are violated.
9. The “public policy” ground cannot be invoked to examine merits of a foreign arbitral award.
10. The “public policy” cannot be used to create more grounds which are not provided in the NY Convention such as misapplication of law by the arbitrator or the arbitrator’s decision being contrary to the law of Pakistan.

Proceedings before the High Court:

Once a party obtains a foreign arbitral award, it may approach a High Court by filing an “Enforcement Petition” under the 2011 Act.[10] The High Court then affords the award debtor an opportunity to present any objections to the foreign arbitral award. In light of settled jurisprudence, such objections are narrowly construed. If the objections are dismissed, the foreign arbitral award stands recognized, and the court proceeds with its enforcement.

Conclusion

Thus, it is evident that Pakistan offers multiple pathways for the enforcement of foreign judgments, each tailored to specific circumstances outlined above. The procedural framework is both lucid and efficient, ensuring seamless enforceability while bolstering Pakistan’s adherence to its international obligations.

Written by Jahanzeb Awan,

Neha Asif, and Umar Shahzad Abbasi of Haidermota & Co with the assistance of  Kamran Rehman, Valya Georgieva and Harriet Campbell of Penningtons Manches Cooper

[1] Emirates Bank Limited v. M/s Usman Brothers (1990 MLD 1779)

[2] For the provinces Punjab and Baluchistan, s. 44A does not specifically include the UK, and refers to “reciprocating territory” as notified by the Government. The UK was notified as a “reciprocating territory” on July 26, 1958 through notification No. 11(5)/56. For all other jurisdictions, s. 44A specifically mentions the UK.

[3] For the province of Punjab and Baluchistan, the ‘superior courts’ mean the courts notified by the Government of Pakistan in the notification. A procedural anomaly is that the 1958 Notification of the Government of Pakistan does not specify any “superior courts” of the UK.

[4] As per the relevant provisions in Punjab and Baluchistan, a judgment or decree given in an appeal is not specifically included in definition of “decree”.

[5] Mena Energy DMCC v. Hascol Petorleum Limited (PLD 2022 Khi 388)

[6] ibid.

[7] Syed Jaffer Abbas v. Habib Bank Limited (PLD 2014 Khi 209)

[8] Mst. Abida Zakir v. Raja Aman Ullah (PLD 2022 Isb 54)

[9] Taisei Corporation v. A.M. Construction Company (Pvt) Limited (2024 SCMR 640)

Tradhol International SA Sociedad Unipersonal v. Shakarganj Limited (PLD 2023 Lah 621)

Orient Power Company (Pvt) Limited v. Sui Northern Gas Pipelines Limited (2021 SCMR 1728)

[10] Although the 2011 Act does not specify which High Court may be approached, it is generally preferred that the enforcement proceedings be instituted in the High Court within whose jurisdiction the award debtor is based or where its substantial assets are located.