P L D 2026 Sindh 75

 P L D 2026 Sindh 75

Before Muhammad Faisal Kamal Alam, J

VIRGOZ OILS AND FATS PTE. LIMITED ---Plaintiff

Versus

FAISAL EXPORTS (PVT.) LIMITED ---Defendant

Suit No. 1500 of 2011, decided on 5th August, 2024.

(a) Recognition and Enforcement (Arbitration Agreements and

Foreign Arbitral Awards) Act (XVII of 2011)---

----Ss.6 & 7---Foreign arbitral award---Recognition and enforcement,

refusal of---Commercial sale contracts, dispute of---Unsigned

instruments---Objector denying execution of written contract, plea

of---Contractual relationship, proof of---No concluded/enforceable

contract---Consequence---Arbitration clause not binding---Time

limit/limitation to invoke arbitration (120 days)---Notice of arbitration

issued beyond 120 days---Effect---Non-filing of appeal not fatal in

such circumstances---Facts:---Plaintiff company filed suit under S. 6

of the 2011 Act to enforce the Palm Oil Refiners Association of

Malaysia (PORAM) arbitral award arising out of two alleged palm oil

sale contracts and awarding about USD 6.301 million plus interest---

The defendant/objector resisted enforcement mainly on the grounds

that no concluded/signed contracts (and hence no binding

arbitration agreement) existed and the dealings were only

correspondence / broker communications which were never acted

upon, and the claim was time-barred under PORAM rules---Issue:

Whether a foreign arbitral award rendered by PORAM (Malaysia)

could be recognized and enforced under S. 6 of the Recognition and

Enforcement (Arbitration Agreements and Foreign Arbitral Awards)

Act, 2011, when the objector asserted that no concluded

contract/arbitration agreement in writing ever came into existence

and, in any event, the arbitration was invoked beyond the

mandatory 120-day limitation under PORAM Rules? ---Held: A

foreign award had to be enforced, unless it was adversely affected

by the Art. V (of the Schedule) of the Act, 2011---No enforceable

contact was ever concluded between the parties---Considering, that

admittedly, both the plaintiff and the objector had longstanding

business relationship, this crucial aspect about the existence of any

contractual relationship was decided in favor of plaintiff discarding

the defence of the objector, by stating that previously also, present

objector had performed contracts without signed copies---If any step

was taken in pursuance of the subject contracts, for instance,

opening of letter of credit[by the objector], or, shipment by theplaintiff, even then, this finding of the tribunal would have been

unexceptional; but, nothing happened in pursuance of the subject

contracts---Further, an irrevocable and confirmed letter of credit

had to be established in sellers favor through a recognized bank not

later than ten days from the date of contract which significant term

along with others were never acted upon---Regarding the claim of

damages no piece of evidence was produced in the arbitration

proceedings about sustaining damages by the plaintiff yet the claim

was accepted by the tribunal---Viz. the question as to whether the

claim was time barred, if the original shipment dates of both the

purported contracts were considered, that was 15th August to 10th

September 2008 [First Contract] and 20th September to 10th October

2008 [Second Contract], then, a notice of arbitration was to be

submitted within 120 (one hundred and twenty) days, after the

expiry of the contract shipment period---Therefore, in respect of the

First Contract, a notice of arbitration should have been sent on or

before the 10th January 2009, whereas, with regard to the Second

Contract, the notice of arbitration should have been sent by or

before 10th of February 2009, but admittedly it was sent on 16th

March 2009, that was, after the expiry of limitation period---This

glaring error was not addressed in the award and without basingits

conclusion on any tangible material, the award had treated the date

of default as 15th November 2008, by accepting the one-sided

version of the plaintiff--- Pro enforcement bias and second guess

principles could not be made applicable in the present case,

otherwise Article-V of the Act, 2011 would have become redundant---

Although the grounds to refuse recognition and enforcement of a

foreign award as enumerated in the Article-V, were exhaustive, but

still it empowered the Courts to consider an award on its own merits

and with a judicial mind---In these peculiar circumstances, non-filing

of an appeal by the objector, in the present case, could not be treated

as fatal---Since the subject matter was not arbitrable, therefore, the

arbitration tribunal did not have the jurisdiction to decide the lis

through the award, which was adversely affected by the sub-Article

(2) of Article-V of the Act, 2011 and similar provisions of The New

York Convention on the Recognition and Enforcement of Foreign

Arbitral Awards---Present suit was dismissed, in circumstances.

(b) Recognition and Enforcement (Arbitration Agreements and

Foreign Arbitral Awards) Act (XVII of 2011)---

----Ss.6 & 7---Foreign arbitral award---Recognition and enforcement---

Opposing party not having signed the contract, objection of---Validity---

Commercial transactions are not dependent on signing of agreements /

contracts by both, seller and buyer, and in case of denial, particularly,

by a buyer, the terms of the binding contract can be teased out from the exchange of the correspondences, including emails and the other

mode of modern communication.

Acro s Case PLD 18 Lah. 597 ref.

Hassan Ali for Plaintiff.

Mazhar Imtiaz Lari and Syed Zeeshan Ali for Defendant.

Date of hearing: 13th October, 2023.

JUDGMENT

MUHAMMAD FAISAL KAMAL ALAM, J.---This Suit is filed under

Section 6 of the Recognition and Enforcement (Arbitration Agreements

and Foreign Arbitral Awards) Act, 2011 (the Subject Law ), for the

enforcement of Award dated 25th November 2010 [at page-123],

handed down by the learned Tribunal under the Rules of the Palm Oil

Refiners Association of Malaysia {PORAM} in Case Reference No.A-325.

2. Subject matter of the above Award and the Arbitration Proceeding

was the following two Contracts (though disputed by the present

Respondent-Objector):

1) SG/08/0562/07B02 dated 24th July 2008, 4 5000 metric tonnes

of RBD [refined, bleached and D odorized] palm oil in bulk.

Price was fixed as USD1080 per metric tonne, CFR BQ/K AR.

Shipment date is mentioned as 15th August 10th September,

2008.

2) SG/08/0673/08/B02 dated 27 August 2008. Commodity is RBD

palm oil in bulk. Quantity: 10,000 metric tonnes. Price: USD

845 per metric tonne call Marcy Fr PQ/QR. Shipment date is

mentioned as 20th September 10th October 2008.

3. Through the above Subject Law, the Convention on the

Recognition and Enforcement of Foreign Arbitral Awards, 1958, has

been ratified and enacted.

4. Paragraph-41 of the Award has granted a total sum of USD [US

Dollar] 6,301,250.00 together with 8% interest per annum from the

date of default, which is, 15th November 2008 until the date of

payment of the sum awarded, besides, costs of the reference to be

decided by PORAM.

5. Mr. Hassan Ali, Advocate, for the Plaintiff while supporting the

Award, has referred to Section 6 of the Subject Law, that the Award be

enforced as it fulfills all the requisite conditions mentioned in the

Subject Law; contends that ample opportunity was given to all sides and after considering the record and witnesses, the Award has been

pronounced, which was not appealed against and attained finality.

6. On the other hand, Mr. Mazhar Imtiaz Lari, Advocate, has argued

by referring to his Objections, that the two purported Contracts [under

dispute], which were the subject matter of the Arbitration Award

sought to be enforced through the present proceeding, were neither

signed by the Respondent / Defendant [the Objector], nor, acted upon

by the Parties hereto; only correspondences were exchanged, which

never materialized into a contract; second objection is that the Award

itself is unenforceable, because it suffers from material illegality and

irregularity, inter alia, it has adjudicated a time barred claim in terms

of Rule 2, Sub-Rule {iii} PORAM Rules of Arbitration and Appeal

[supra], wherein 120 calendar days is mentioned to bring a claim of

the nature, after the expiry of the contract shipment period or the Bill

of Lading date, whichever is later.

7. In rebuttal the Plaintiff s Counsel has stated that issue of

limitation does not exists, which can otherwise be waived under Sub-

Rule (5) to Rule VI of Section 1, as well as Rule 8 of Section-2 of the

PORAM Rules.

8. Summary of the Case Law cited by the Plaintiff s Counsel is that

under the international commercial arbitration, jurisdiction of the

Courts is merely supervisory and New York Convention itself

advocates for a pro enforcement bias; one must be mindful that the

public policy defence [as mentioned in the Subject Law, ibid, under the

Article V (2) (b)] is an exceptional one, requiring heightened standards

of proof, inter alia, if an award is patently unreasonable; awarding a

greater quantum of compensation than that was due by an Arbitral

Tribunal does not amount to violation of public policy, as the same

would open floodgates and would require the courts to undertake an

examination of each and every award, which is against the very spirit

of the New York Convention. [Orient case, ibid, 2021 CLD 1069-

Supreme Court of Pakistan]. The New York Convention, inter alia,

serves the International Trade and Commerce, providing an additional

measure of commercial security for parties entering into cross-border

transactions [Conan case, supra, PLD 2014 Sindh 349].

9. Pr cis of the Case Law cited by the Objector s Counsel is that while

examining an Award, a Court does not act as an Appellate Forum, thus,

reappraisal of the evidence cannot be done, but, if the finding is

contrary to the evidence, and if left unattended, causing grave

injustice, then, it justifies intervention; Court has to apply its judicial

mind in examining an Award, even if no objection is filed; illegality

must be appearing on the face of the Award, in order to set it aside;

objection about the inherent jurisdiction of an arbitrator is a point of law that can be raised at any stage; rule of international arbitration

about jurisdiction, viz. Kompetenz-Kometenz discussed in Karachi

Dock Labour Board case [supra]. The Subject Law (ibid) has been

interpreted in the referred Decision of Jess Smith [2019 CLD 23,

Lahore], that conditions for refusing enforcement of an award is to be

narrowly construed; the investigation into disputed questions can be

done, although framing of Issues is not mandatory. Court may adopt a

procedure for deciding the Case under the Subject Law, which is in

consonance of the principles of justice.

In Acro Case [supra, cited by both the learned Advocates], inter alia,

Article II of the New York Convention is interpreted; a broad

interpretation to be given to the phrase agreement in writing as

mentioned in the Governing Law, considering the present day

information system, thus, an arbitral clause or an arbitration

agreement can be teased out from the exchange of letters /

correspondence; for compliance of Article IV of the above Convention,

the claimant has merely to supply a copy of the agreement, whether

signed or unsigned, or based on exchange of letters or telegrams .

10. Arguments heard and record considered.

11. The learned Advocates for the Plaintiff and the Objector have

also submitted their respective written arguments / Synopsis, along

with the Case Law, PORAM and FOSFA [Federation of Oils, Seeds and

Fats Associations Limited] Rules and Standard Terms of Contract (CIF)

for Palm and Palm Kernel Oil Products in bulk.

12. Statement of the Claim preferred by the present Petitioner /

Plaintiff before the Tribunal is of 13th July 2009 and Objections

[Statement of Defence] thereto by the present Objector is available in

the record is dated 6th August, 2009 [received to the Tribunal on 11th

August 2009, as per paragraph-8 of the Award], whereafter its Reply

was filed by present Plaintiff on 31st August 2009.

13. It is not disputed that both the Plaintiff and the Defendant have a

long-standing commercial relationship even before the present

dispute.

14. Mindful of the fact that the appraisal of the evidence cannot be

done in the present Proceeding; besides, in view of the Subject Law

and the judicial consensus, inter alia, evolving the rule of pro-

enforcement bias [ibid], second guess principle [Russell on Arbitration,

24th Edition, Chapter-8 {8-031}], kompetenz-kompetenz , a Foreign

Award is to be enforced, unless it is adversely affected by the Article V

(of the Schedule) of the Subject Law [supra]; notwithstanding this,

since a specific plea/defence is taken by the Objector about the

limitation [time barred claim] and non-existence of concluded contracts, which factors go to the very root of the arbitrability of the

subject arbitration, thus, these submissions must be considered so also

whether due process was followed, which is an established principle

in domestic and international arbitration. With this limited parameter,

the present Award is considered along with the Record of the Lis. It

would be advantageous to reproduce excerpt from Russell on

Arbitration, 24th Edition, Chapter 8 {8-005}_

Even if the jurisdiction of the tribunal is not in issue, the court has a

discretion not to grant leave to enforce an award summarily. The

discretion will be exercised in an appropriate case in the

interests of justice. It is not an administrative rubber stamping

exercise. {Underlined for emphasis}.

15. The Arbitration Proceeding commenced on the basis of Clause 11

of the ADDITIONAL TERMS and CONDITIONS of the Subject Contracts,

so also mentioned in Paragraphs-6 and 20 of the Award, while

acknowledging the fact that the above two Subject Contracts

(purportedly) were never signed by the present Objector. This material

fact is mentioned under the caption J. The Tribunal Findings ,

Paragraphs-17, 18 and 32; the learned Tribunal has given a finding in

favour of the Plaintiff [Claimant] about the existence of the Subject

Contracts and the default on the part of the Objector [Paragraph-38 of

the Award]. Secondly, a bare reading of the Award shows that the

Paragraphs-16 to 34, leading to the above conclusion, is in fact mere

narration of the stance as averred in the Statement of Claim of the

Plaintiff / the Claimant [available in the record of present proceeding].

Undoubtedly, it is an established rule that such commercial

transactions are not dependent on signing of agreements / contracts by

both, Seller and Buyer, and in case of denial, particularly, by a buyer,

the terms of the binding contract can be teased out from the exchange

of the correspondences, including emails and the other mode of

modern communication, as held in Acro s Case [supra], besides, other

numerous Decisions, in local and foreign jurisdictions; but in the

present case, the admitted fact is entirely different from what is

mentioned above, because almost all written communications have

been done by Plaintiff [Claimant] through the Broker, viz. Iqra

International, with the Objector. There is no written communication

from the Objector, about acceptance of Offer (even in view of the

above Case Law), to purchase the Subject Product. Unfortunately, the

STATEMENTS OF DEFENCE filed by the Objector before the learned

Arbitration Tribunal, was not considered, wherein it is specifically

stated that the past practice between Plaintiff and the Objector was / is,

that contract(s) once materialized, Iqra International got it signed

from the Objector and forward it to the Plaintiff so the matter be

checked up from their record. [Paragraph-4 of the Statement of Defence]; not only this, the Plaintiff in its Statement of Claim

{Paragraph-25} has also confirmed that how past contracts came into

the existence, by stating that contracts were concluded by issuing

Letters of Credit (by the Objector) to pay for the cargoes and bills of

lading were issued to the Objector. Admittedly, none of these

significant events happened in the present case, which can be

construed as an offer and acceptance on the part of the Parties hereto.

The logical conclusion that can be drawn from the pleadings of both

the Parties [as available in the present Proceeding] is, that no

enforceable contact was ever concluded between them. Considering,

that admittedly, both the Plaintiff and the Objector have longstanding

business relationship, as stated in Paragraph-27 [of the Award], the

above crucial aspect about the existence of any contractual

relationship was decided in favor of Plaintiff [Paragraph-36 of the

Award], discarding the defence of the Objector, by stating that

previously also, present Objector had performed Contracts without

signed copies. If any step was taken in pursuance of the Subject

Contracts, for instance, opening of Letter of Credit [by the Objector],

or, shipment by the Plaintiff, even then, this Finding of the learned

Tribunal would be unexceptional; but, nothing happened in pursuance

of the Subject Contracts, as discussed in the foregoing Paragraphs. This

is the minimum requirement of due process, that when an issue is

decided in favour of a Party and against the other, the documents

[relied upon] or tangible evidence produced, should be discussed,

which is clearly lacking in the present Award; besides is also violative

of the statutory provisions of the Contract Act [1872 of Pakistan].

Thirdly, Clause 11- Payment and Shipping Documents, which is one of

the standard terms of Contract for selling Palm and Palm Kernel Oil

Products in Bulk, jointly issued by FOSFA and PORAM, inter alia, an

irrevocable and confirmed letter of credit be established in sellers

favour through a recognized bank, not later than 10 days from the

date of contract or the business day prior to commencement of

loading, whichever shall first arise [unless otherwise agreed between

the parties]. Undisputedly this significant term and other requisites

mentioned under the above Clause-11, were never acted upon, either

by the Plaintiff or the Objector, because, there was no binding

agreement / contract existed between the Parties.

16. Adverting to the claim of damages.

Although no piece of evidence was produced in the arbitration

proceeding about sustaining damages [by the Plaintiff], yet, the claim of present Plaintiff has been accepted as averred by the learned

Tribunal.

Undisputedly, neither letter of credits were established by the

Objector, nor, the Subject Cargo was shipped to the Port of Destination

[at Karachi]; rather the admission mentioned in the Statement of Claim

of the Plaintiff, has in fact with some variation reproduced in the

Award, that the Cargo was diverted [Paragraph-11 of the Claim,

present Plaintiff admitted that it had planned to ship the Cargo for the

two Contracts on the Vessel MT PEGASUS 7 but had diverted the Vessel

to another destination because the Respondents were not in a position

to establish the Letters of Credit. ]; but, no fact was put forth that what

cost the Plaintiff incurred or damages resulted, specially, when it is

sold the said Cargo to the third party [whose identity was never

disclosed]. In these circumstances, it was obligatory upon the learned

Tribunal to at least inquire about the causation of the alleged damages

or losses. Nothing is mentioned in the Award that what evidence is led

to prove the claim for damages, which, cannot be granted or accepted

on mere statement.

17. A glaring contradiction is mentioned in Paragraph-26 of the

Award, that on 15th November 2008, the Plaintiff instructed the Broker

to inform the Objector that since Letter of Credit was not established,

thus, the latter [Objector] committed default, but, as a compromise, the

Claimant was prepared to load the 5000 metric tons of RBD Palm Oil

under the First Contract on the MT Process with the 10,000 metric tons

of RBD Palm Oil under the Second Contract lifted in December 2008

provided the Respondent immediately established a letter of credit for

the 5,000 metric tons of cargo , whereas, in Paragraph-32 [of the

Award], it is stated that on 03.03.2009, vide Email sent to the above

Broker, the two Subject purported Contracts were amended, to the

extent of extension of shipment date, which was extended up to the

month of November 2008. The learned Arbitrators did not appreciate

the fact, rather overlooked it completely, that under what provision of

law, an amendment in the Contract can be done unilaterally and that

too back dated [detailed discussion on this is mentioned in the

following Paragraph].

18. The Paragraphs-39 to 41 of the Award has specifically dealt with

the claim of damages. The Plaintiff has not mentioned in its Statement

of Claim any relevant fact about incurring the losses.

The criteria adopted by the learned Tribunal is, that it has

considered the difference in sale price of the contracted goods and the

price on the default date [15.11.2008], but, of the Product Crude Palm

Oil ; whereas, the Subject Product is RBD Palm Oil. On this, the learned

Counsel for the Plaintiff has stated that price of Crude Palm Oil is lesser than the Subject Product, which shows that the learned Tribunal

has taken a lenient view, while awarding Damages. The argument is

untenable, for the simple reason, that the price difference of the

product in question is to be considered and not of some other product,

if actually a breach is committed by a Party. By and large the findings

of the Award is basically the pleadings / averments of present Plaintiff.

This material error in the Award also casts doubt on the impartiality of

the learned Tribunal and due process.

19. Whether Claim was time barred.

It is clarified that the following reasoning on the point of limitation

[Time Limit to invoke arbitration] is in addition to what has been

discussed in the preceding Paragraphs, in particular, that enforceable

commercial contracts never came into existence.

Paragraph-6 of the Award states that present Plaintiff as Claimant

sent its request for arbitration to PORAM on 16.03.2009 in respect of

the Contracts in question (ibid) dated 24.07.2008 and 27.08.2008. The

question about limitation is examined.

20. Rule-2 [in Section-1] of the PORAM Rules is reproduced herein

under for a ready reference_

2 Time Limits

i) In the case of any dispute on quality the party claiming arbitration

shall submit its notice of arbitration to PORAM within twenty-

one (21) calendar days from date of receipt of the goods at the

place at which quality is deemed to be final in accordance with

contractual terms. If sample(s) is available the same should also

be sent along with the request to PORAM where such sample(s)

shall be held at the disposal of the Sole Arbitrator/ Panel of

Arbitrators/ Appeal Board.

ii) Notwithstanding the above, if the Claimant requires supporting

analysis(es), further sample(s) if available shall also be

dispatched at the same time to a recognized independent

analyst.

iii) In the case of any dispute other than on quality, the party

claiming arbitration shall submit its notice of arbitration to

PORAM within one hundred and twenty (120) calendar days

after the expiry of the contract shipment period or the Bill of

Lading date, whichever is later.

21. The stipulations of both the above Contracts are identical except

their dates and quantity of the Product, viz. RBD Palm Oil in bulk. The

first Contract is of 24th July 2008, which was subsequently amended (purportedly) twice to the extent of the Shipment date, which was

changed from 15th August to 10th September 2008 [the original date]

to 20th September - 10th October 2008 [First amendment] and then to

November 2008 [the Second amendment].

22. The Second Contract for ten thousand metric ton of RBD Palm Oil

is of 27th August 2008, in which the shipment date was from 20th

September to 10th October 2008, which was amended to November

2008. It means that shipment date for both the contracts was changed

to November 2008 [this is also averred in the pleadings of present

Petitioner/Plaintiff in Paragraph 5(iv)].

23. Admittedly, there is no direct exchange of correspondences,

(including emails) between the present Plaintiff and the Objector

about the above Contracts and their purported extension /

amendments. It was Iqra International as Broker, which has sent the

Emails to Plaintiff about the alleged confirmation of business.

Subsequently, the above Iqra International has also addressed a

Correspondence of 11th December 2008 (at page-185 of the Court

Record) to Defendant/Respondent along with the Letter of same date of

Plaintiff [Claimant], inter alia, requesting for opening of LC and lifting

subject cargoes; whereas, above referred enclosed Letter of Plaintiff,

has held the Objector in technical default on 15th of November 2008

for non-performance of contract; besides mentioning the claim

towards losses suffered by the Plaintiff. The text of the above two

Missives is contradictory to each other.

24. If the shipment date is allegedly extended upto November 2008,

then under what circumstances or rule, Plaintiff/Claimant has held the

Objector in default on 15th of November 2008; that is, even before the

expiry of the Contract period, viz. 30th November 2008. Interestingly

the above version of the Plaintiff [self-contradictory though] has been

accepted in the Award also [Paragraph 38], without giving any

plausible reason for such a finding. With regard to these extensions in

Shipment period, the determination of the learned Tribunal as

mentioned in its Paragraph-32 is also quite surprising; it is stated that

on 3rd March 2009 the present Plaintiff/Claimant sent an e-mail to the

Broker [supra], intended for the Objector, attaching copies of the

second amendment in the First Contract and the amendment in the

Second Contract, altering the shipment date to November 2008 [as

already discussed in the foregoing Paragraphs]. It means that these

amendments [purported] were sent on 3rd March 2009, but the

shipment dates were altered back dated to November 2008. Thus, both

the Contracts were purportedly amended by the Plaintiff unilaterally

and that too in back date. Admittedly, these amendments were not signed by the Objector [so is observed in the Award] and devoid of any

sanctity.

25. Even if the original shipment dates of both the purported

contracts are considered, that is 15th August to 10th September 2008

[First Contract] and 20th September to 10th October 2008 [Second

Contract], then, in terms of above Rule 2, sub-rule (3) [of Section-1], a

notice of arbitration is to be submitted within 120 (one hundred and

twenty) days, after the expiry of the contract shipment period.

Therefore, in respect of the First Contract, a notice of arbitration

should have been sent on or before the 10th January 2009, whereas,

with regard to the Second Contract, the notice of arbitration should

have been sent by or before 10th of February 2009, but admittedly it

was sent on 16th March 2009, that is, after the expiry of limitation

period. With regard to the argument of Plaintiff's Counsel, that in

terms of Rule 5 [of Section-1], the Arbitrators can vary the time frame,

is untenable, because no such finding has been given by the learned

Arbitrators, about condoning the delay in filing a time barred claim

before the Arbitration Tribunal.

26. This glaring error is not addressed in the Award and without

basing its conclusion on any tangible material, the Award has treated the

date of default as 15th November 2008 [Paragraph-38], by accepting the

one-sided version of the Plaintiff. The above finding is contrary to the

record.

27. Judgments relied upon by Plaintiff Counsel in respect of the

international arbitration and the Governing Law is distinguishable

from the peculiar facts of the present Lis; for the reasons stated in the

foregoing paragraphs.

In my considered view, pro enforcement bias and second guess

principle(s) cannot be made applicable in the present case, otherwise

Article-V of the Subject Law would be redundant. Although the

grounds to refuse recognition and enforcement of a Foreign Award as

enumerated in the Article-V, are exhaustive, but still it empowers the

Courts to consider an Award on its own merits and with a judicial

mind. In these peculiar circumstances (stated in the foregoing

paragraphs), non-filing of an Appeal by the Objector, in the present

case, cannot be treated as fatal; the contention of Plaintiff s Counsel in

this regard cannot be accepted.

28. Since the subject matter was not arbitrable, therefore, the learned

Arbitration Tribunal did not have the jurisdiction to decide the Lis

through the Award, which is adversely affected by the sub-Article 2 of

Article-V of the Subject Law and similar provisions of The New York Convention on the Recognition and Enforcement of Foreign Arbitral

Awards.

29. Consequently, the present Lis is dismissed, with no order as to

costs.

Case law cited by the Plaintiff s counsel.

1. 2021 C L D 1069 Supreme Court

[Orient Power Company (Private) Limited v. Sui Northern Gas

Pipelines Limited];

2. P L D 2014 Sindh 349

[Abdullah v. CNAN GROUP SPA through Chief Executive / Managing

Director];

3. P L D 2018 Lahore 597

[LOUIS DREYFUS COMMODITIES SUISSE S.A. v. ACRO TEXTILE

MILLS LTD.];

4. 1999 P L C 1018

[Conticotton S.A. Co. v. Farooq Corporation and others];

5. 1999 C L C 437

[Merdith Janes Co. Limited v. Crescent Board Limited];

6. 1987 C L C 83

[Ralli Brothers and Company Limited v. Muhammad Amin

Muhammad Bashir Limited]; and

7. 2007 Y L R 2287

[Messrs Sign Source v. Humayun H. Baig Muhammad].

Case law relied upon by Defendant s counsel

1. 2014 C L D 824 [Supreme Court of Pakistan]

[A. QUTUBUDDIN KHAN v. CHEC MILLWALA DREDGING CO. (PVT.)

LIMITED];

2. 1993 C L C 1491 [Karachi]

[TRUSTEES OF THE PORT OF KARACHI v. Messrs IFTIKHAR

BROTHERS];

3. P L D 1996 Supreme Court 108

[Messrs JOINT VENTURE KG/RIST through D.P. Giesler G.M., Bongard

Strasse 3, 4000, Dusseldorf-30, Federal Republic of Germany, C/o 15-Shah Charagh Chambers, Lahore and 2 others v. FEDERATION

OF PAKISTAN, through Secretary Food Agricultural and Coop:

and another];

4. 2014 C L D 132 [Sindh]

[ENGRO FERTILIZERS LIMITED v. FEDERATION OF PAKISTAN

through Secretary, Ministry of Industries, Government of

Pakistan, Islamabad];

5. 2019 C L D 23 [Lahore]

[JESS SMITH AND SONS COTTON LLC v. D.S. INDUSTRIES];

6. P L D 2018 Lahore 597

[LOUIS DREYFUS COMMODITIES SUISSE S.A. v. ACRO TEXTILE

MILLS LTD.];

7. 2010 C L C 506 [Karachi]

[Messrs GANDHARA CONSULTANTS (PVT.) LTD. v. PAKISTAN

DEFENCE OFFICER S HOUSING AUTHORITY, KARACHI];

8. 1998 C L C 1671 [Karachi]

[Messrs KHAN BROTHERS and ASSOCIATES v. DIRECTOR-GENERAL

FOOD, GOVERNMENT OF PAKISTAN]; and

9. P L D 2016 Supreme Court 121

[KARACHI DOCK LABOUR BOARD v. Messrs QUALITY BUILDERS

LTD.].

Law under discussion: (1). The Recognition and Enforcement

(Arbitration Agreements and Foreign Arbitral Awards) Act, 2011-

the Subject Law.

(2). Convention on the Recognition and Enforcement of Foreign

Arbitral Awards (New York, 1958).

(3). Russell on Arbitration (Twenty-Fourth Edition).

(4). The Contract Act, 1872

(5). The Palm Oil Refiners Association of Malaysia {PORAM}

Arbitration Rules

UN/V-1/Sindh Lis dismissed.