An In-Depth Analysis on the Conflicting Decisions in Dallah v. Pakistan: Same Law, Same Principles, Different Decisions

Abstract

Arbitration is an alternative, to litigation, form of private dispute resolution, a judicial determination by an independent third party to whom the disputing parties agree to hand over their power to decide the dispute to the arbitrator(s). The 'core' merit of arbitration is the international enforceability of its awards by virtue of the Convention on Recognition and Enforcement of Foreign Arbitral Awards 1958 ('The New York Convention'). In line with the NY Convention, an arbitral award is 'portable' and can be enforced to the contracting States simply and without formality. The international applicability of commercial arbitration has inevitably raised questions of conflict of laws or even questions of conflicting decisions based on the same law. The most prominent example of conflicting decisions stemming from the application of the same principles is the case of Dallah v Pakistan which has commanded immense attention in the international arbitration community. In a continued astonishing series of events, the English Supreme Court and the French Cour d'Appel reached contrary decisions on the enforcement of an international arbitral award, despite the application of the same law to the same facts. The focus of this article is to examine in-depth the legal proceedings accrued in Dallah, identify the questions raised and the reasoning of the Courts, including the Tribunal's reasoning, and expose the reasons why the Supreme Court and the Cour d'Appel, whilst considering the same facts and applying the same principles, arrived at such antithetical decisions.

Keywords: International Arbitration, New York Convention, Dallah v. Pakistan, International enforceability of arbitral awards