CA-2025-000131 - [2025] EWCA Civ 928

Application of the principles in the present case

The supervisory role of the English court

I do not accept the Judge’s first proposition, namely, that even where the English court is the supervisory court in relation to a London-seated award, it has no “policing” role if a party, purportedly relying on the jurisdiction of the foreign court pursuant to the New York Convention, challenges the award in a foreign jurisdiction.

The English court does not, of course, exercise, nor purport to exercise any power or control over the foreign court, but it does have exclusive jurisdiction in relation to proceedings to challenge the award (as per C v D), and is entitled (and, indeed is bound on an application for an anti-suit injunction) to consider whether the party is doing so in the foreign jurisdiction in breach of the arbitration agreement (and the exclusive jurisdiction of the supervisory court) and should be restrained. It is well recognised and frequently emphasised that the jurisdiction to do so is exercised in personam over the party in breach, and that the English court need have no hesitation by reasons of comity in doing so when justified: see the passage from The Angelic Grace, quoted and approved by the Supreme Courtin UniCredit, as set out in paragraph 46 above.

In my judgment the English court cannot simply abrogate its supervisory role and permit a party to breach the arbitration agreement and the exclusivity of the supervisory court, relying on the foreign court to decline jurisdiction. Apart from being wrong as a matter of principle, it would undermine the approach mandated in C v D and would enable parties to availthemselves of inapplicable domestic provisions in foreign jurisdictions which purport to invalidate or permit interference with foreign awards, as was the case of the New York statute in C v D and may be the case under the law of Pakistan as regards the current Award.

I therefore do not accept that the labelling of NTDCL’s application in Lahore as being under the New York Convention should cause the English court to leave the matter to the courts of that jurisdiction. SHPL is entitled to ask the English courts to consider those proceedings and to enforce the arbitration agreement and its exclusive jurisdiction if NTDCL is bringing the proceedings in breach of them.

Can NTDCL pre-emptively challenge the Award in Pakistan under the Convention?

I have answered this question in the analysis of the applicable principles above. The supervisory court, that of England and Wales in the case of the Award, has exclusive jurisdiction over challenges to the Award, which must be brought under sections 67 to 69 of the 1996 Act. The New York Convention is concerned only with applications for the recognition or enforcement of the Award, Article V providing a shield, or defence, against such applications. Contrary to the Judge’s decision, the Convention does not provide for pre-emptive challenges to the Award. That would entirely undermine the role of the supervisory court as the exclusive jurisdiction for such challenges and cannot be reconciled with the authoritative statement of the law in C v D. It is also contrary to the way in which the New York Convention is implemented in this jurisdiction, where Article V challenges can only be raised in answer to an application to recognise and/or enforce.

It follows that the express challenges to the validity of the Award made in the Lahore proceedings cannot be viewed as “application[s]” under Article IV of the New York Convention, but are brought in breach of the arbitration agreement, which (by virtue of the selection of London as the seat) requires that such applications are made exclusively in this jurisdiction under the 1996 Act.

Is NTDCL seeking recognition and enforcement of part of the Award?

In my judgment, as the supervisory court in relation to the Award, the Judge should have considered the nature and effect of the contentions in the Lahore proceedings and the true nature and effect of the relief sought.

NTDCL’s application in the Lahore proceedings made the express assertion in paragraph 32 that the Arbitrator did not have jurisdiction in relation to the “Subject Matter” of the arbitration and claimed at (a)(ii) of the prayer a determination that each and every one of the substantive declarations and orders made in the dispositive section of the Award was a nullity. The sole order NTDCL sought to “recognise and enforce” was the standard “catch all” dismissal of any other claims for relief. NTDCL claims that it is seeking the recognition and enforcement of the Arbitrator’s acceptance that NEPRA had exclusive jurisdiction to set the actual COD tariff, but that was not in issue in the arbitration, it is in any event a matter of Pakistan statute, and cannot sensibly be said to be “recognised” through the tail-end wording in the Award.

In my judgment the claim in the Lahore proceedings, although partially framed as an application for recognition and enforcement, is undoubtedly a full-throated challenge to the Award and its effect, namely, that NTDCL is liable in contract to pay the difference between the COD tariff set by NEPRA and the tariff which would have been set had the PPA terms been applied. The injunction sought and granted demonstrates the real thrust of the claim. I reject the contention in NTDCL’s Respondent’s Notice that the Lahore proceedings do not involve a pre-emptive challenge to the Award, and its further suggestion that the proceedings in any event seek in the alternative “full recognition” of the Award. As a consequence, NTDCL’s further contentions in that Notice that it had a contractual right to pursue recognition and enforcement proceedings in any New York Convention jurisdiction, and that the courts of such state would have “exclusive jurisdiction” of such Convention proceedings, add nothing.

NTDCL’s challenge to the Award, as I consider it plainly to be, is brought in breach of the arbitration clause and the exclusive jurisdiction of the English court in relation to such a challenge and should be restrained by anti-suit injunction.

During the hearing before us NTDCL offered to amend the prayer in the Lahore proceedings to read as follows:

“It is respectfully prayed that:

this Court may kindly pass a judgment and order to recognize paragraph 377 of the Award;

alternatively, the Court may kindly pass a judgment and order to recognize and enforce the Award;

[SHPL] be permanently restrained from issuing any invoices contrary to paragraph 377 of the Award.

Any other relief deem (sic) fit and appropriate by this Honourable Court may also be granted.”

In my judgment the revised relief, whilst couched even more carefully as seeking recognition of part of the Award, or alternatively the whole of it, is still in reality seeking to rely on what was common ground between the parties as to the role of NEPRA (recorded in [377] of the Award). That is impermissibly to avoid the Arbitrator’s fundamental findings that NTDCL is contractually liable for more, hence the claim to injunct SHPL issuing invoices for more than NEPRA determines. I consider it is clear that NTDCL, if not restrained by this court, will use the Lahore proceedings, and the wide jurisdiction of the Pakistan courts (to grant “other relief deem[ed] fit”), to nullify the effect of the Award under the guise of recognising and enforcing it.