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

Dismisses and denies all other claims and requests for relief.”

On 13 June 2024 the Arbitrator issued a Memorandum of Correction, deleting the words “less what it has actually paid” in [514(d)] of the Award, accepting SHPL’s submission (agreed by NTDCL) that those words were included in error and would, if taken literally, result in double deduction of the amount paid.

The Lahore proceedings

On or about 7 August 2024 NTDCL issued an application in the Lahore High Court. In paragraph 1 the application was described as being under the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act 2011 for “inter alia, partial recognition and enforcement of an LCIA Award dated 07.05.24”. The paragraph went on to state that NTDCL primarily sought enforcement and recognition of declarations of the Arbitrator “on certain central and foundational issues in dispute between the Parties, in particular Paragraph 514(i) of the Award”. This referred to the catch-all provision at the end of the dispositive section of the Award stating that the Arbitrator “Dismisses and denies all other claims and requests for relief”.

After setting out the background to the matter, at paragraph 30 the applicant referred again to paragraph 514(i) of the Award, stating that the Arbitrator “broadly upheld the positions advanced by” NTDCL and had made “salient findings and declarations on the central and foundational issues between the Parties”. NTDCL then identified the Arbitrator’s recognitions of NEPRA’s exclusive jurisdiction on tariffs under the law of Pakistan, including on electricity imported from the AJK.

NTDCL then asserted as follows:

That the natural and necessary consequence of the foregoing findings of the Sole Arbitrator, particularly in relation to tariff, was that the Sole Arbitrator did not have jurisdiction in relation to the Subject Matter.

That however, the Sole Arbitrator surprisingly proceeded to ascertain contractual entitlement in relation to adjustment of project cost and tariff at COD under the PPA, and made the following salient findings (“Contractual Assessment): [setting out [514 (a)-(d) of the Award].”

NTDCL concluded at paragraph 36 that the finding as to contractual entitlement would usurp the exclusive jurisdiction of NEPRA and is thus in violation of Pakistani law. It was asserted that the Award was not enforceable by reason of Articles V(2)(a) and (b) and V(1)(a) and (c) of the New York Convention.

It was further asserted in paragraph 38 that SHPL had sought to raise monthly invoices purportedly based on the contractual tariff set by the Arbitrator, contending that it was critically important that the Award be recognised and enforced so that SHPL may be restrained from acting in violation of the PPA and the law of Pakistan.

As for relief, NTDCL prayed that:

this Court may kindly pass a judgment and order to recognize and enforce the Award in terms of Para 30 hereof, and in particular Para 514(i) of the Award, by holding that:

only NEPRA has the power to determine, approve or alter tariff for electric power services under the laws of Pakistan, including in respect of import of electricity generated by a project located in AJK and post-COD indexations, and COD Stage Tariff, being part of Pakistani law, applies to the Project unless altered by NEPRA; and

consequently, the assumption of jurisdiction by the Sole Arbitrator vis-á-vis Contractual Assessment of the project cost and tariff at COD is a nullity in the eyes of the law, and accordingly, Paras 514(a) to 514(h) are neither recognizable nor enforceable under the 2011 Act.

subject to (a) above and in the alternative, this Court may kindly pass a judgment and order by declaring that in terms of Para 35(ii) above, no amounts are payable by [NTDCL] to [SHPL] pursuant to Para 514(d) of the Award.

[SHPL] be permanently restrained from taking any action, including issuance and processing of invoices under the PPA and commencement of any proceedings directly or indirectly, recognizing or enforcing a tariff that is different in any way to the COD Stage Tariff, as determined by NEPRA for the Project; or in the alternative, contrary to the express findings of the Award as set out in Para 35(ii) of this Application.

Any other relief deem (sic) fit and appropriate by this Honourable Court may also be granted in favour of [NTDCL].”

On 7 August 2024, on the ex parte application of NTDCL, the Lahore High Court made an interim order suspending the operation of a demand notice sent by SHPL to NTDCL for sums in excess of the COD stage tariff determined by NEPRA.

These proceedings

On 23 September 2024 SHPL issued an arbitration claim form in the Commercial Court seeking a final anti-suit injunction against NTDCL. At the same time it issued an application notice seeking interim relief pending the final hearing of its claim.

The application came before the Judge on 29 November 2024. The Judge delivered an ex tempore judgment at the conclusion of the hearing.