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PAKISTAN 28 May 2015 Abid Associated Agencies
High Court, Islamabad, 28 May 2015, C.S. No.33/2011
(Abid Associated Agencies International Pvt. Ltd. etc. v. Areva, ... Read more
High Court, Islamabad, 28 May 2015, C.S. No.33/2011
(Abid Associated Agencies International Pvt. Ltd. etc. v. Areva, etc.)
PAKISTAN 28 May 2015 Abid Associated Agencies
The Court granted the application to stay the suit brought by the plaintiffs, finding that the arbitration clause in the agency contract the parties had not become null and void, inoperative, or incapable of being performed, because the contract had been terminated. In fact, the Court noted, the plaintiffs had initially participated in the ICC arbitration commenced in accordance with the arbitration clause – which had led to a partial award – although they had later decided not to proceed further. The Court discussed in some detail the meaning of “null and void, inoperative, or incapable of being performed”, and the law applicable to arbitration agreements.
The court discusses the meaning and effect of the referral of the resolution of disputes to arbitration, including: who can ask for referral and when, whether a party has waived its right to request arbitration, the defense that there was no contract at all; whether there was a condition precedent to the commencement of arbitration (e.g. mediation), stay of proceedings v. compelling arbitration, and national procedural specificities such as remand and removal (US), effect of class action. etc.
The court discusses how to interpret the Convention’s requirement that the agreement is not null and void etc., as well as specific cases of invalidity: e.g., lack of consent (misrepresentation, duress, or fraud), vague wording of the arbitral clause; other terms of the contract contradict the intention to arbitrate, etc.
The court discusses which law – lex fori, lex contractus, law of the State where the award will be made – applies specifically to determining whether an agreement to arbitrate is “null and void etc.“, and, by extension, which law applies to determining the validity of arbitration agreements.