Arbitration And Implementation Of Awards In Disputes Relating To The FIDIC Construction Contract In Pakistan

• Published date: 05 October 2020
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Arbitration & Dispute Resolution, Construction & Planning
• Law Firm: Farooq, Khan & Mirza, Advocates & Corporate Counsel
• Author: Babbar A. Khan

1. In our previous article titled "Pakistan: Resolution of Disputes in Construction of Infrastructure Projects Under FIDIC Regime Through Arbitration in Pakistan" we concluded by taking the reader through the essential steps of arbitration proceedings in Pakistan, leading up to the final award of the arbitrator. In this article we will be delineating the further steps needed for proper implementation and enforcement of the final award of the arbitrator/arbitration tribunal.

2. DELAYS IN AND TIMELY CONCLUSION OF ARBITRATION PROCEEDINGS

2.1. Prior to going into detail over the legal procedures in enforcing the arbitration award, we must first examine the matter regarding the time limit for conclusion of the arbitration proceedings, which is also of considerable importance.

2.2. Ideally, and in accordance with serial No. 4, Schedule I of the Arbitration Act 1940 (the "Arbitration Act"), the arbitration proceedings are to be concluded within a period of 4 months. However, this is far from what actually happens and this delay is attributable to multiple reasons. A major determining factor in the time consumed for arbitration is the attitude and diligence of counsel representing the parties to the dispute, the parties themselves, and the arbitration tribunal. The spirit of arbitration is for the expeditious resolution of proceedings, as opposed to adjudication from courts, the latter being a laborious process.

2.3. The matter of conclusion of arbitration proceedings within four months is obviously not a hard and fast rule and parties can have the proceedings extended either by the consent of both parties during the arbitration proceedings, or through an application before the court for extension of time under section 28 of the Arbitration Act. In the case of an application before the courts under section 28, we find that the courts are quite lenient towards extending the time in the interest of substantive justice and the adjudication of disputes on merits.

2.4. The actual time required for conclusion of the proceedings depends greatly on the diligence and efforts put in by the counsel from the claimant side, who has the most to gain from timely completion of the arbitration proceedings and finalization of the arbitration award. A dedicated and diligent effort on part of the counsel ensures that the arbitration tribunal gives shorter dates and also puts pressure on the respondent to be prepared for substantive proceedings on the dates fixed by the arbitration tribunal. On the contrary, a laid-back attitude of the claimant and its counsel only allow for the proceedings to be unduly delayed and extended as the arbitrators are neither under any scrutiny or pressure to make timely awards, nor are they pushed to expedite the proceedings. On the other hand, respondents also prefer to keep the matter in limbo as expeditious resolution of disputes does not necessarily lead to any payment to them.

3. RULE OF COURT PROCEEDINGS AFTER THE AWARD...