In Dallah Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2009] EWCA Civ 755, the Court of Appeal confirmed a 2008 Commercial Court decision refusing enforcement of a French ICC award on the grounds that Pakistan was not party to the relevant arbitration agreement.

In disposing of the appeal, the court considered the approach to be taken by a court in determining whether one of the grounds under section 103 of the Arbitration Act (and Article V.1 of the New York Convention from which that section derives) for resisting enforcement of an arbitral award is established. The court found that such a determination involves a full rehearing of the relevant issues and not merely a review of the tribunal's decision. Moreover, the court rejected the contention that the supervisory court at the seat of the arbitration has primacy and held that there was no requirement for a party successfully to challenge an award in the supervisory court in order successfully to resist enforcement elsewhere.

The court also confirmed the first instance decision that, as a matter of French law, Pakistan was not a party to the relevant arbitration agreement. Further, the court found that Pakistan was not estopped from challenging enforcement: the arbitral tribunal was not a court of competent jurisdiction for these purposes as the parties had not agreed to submit to it. Moreover, the court rejected Dallah's argument that Pakistan's failure to challenge the award in the supervisory courts in France rendered the award final and conclusive between the parties. Finally, although the Court of Appeal recognised that in certain circumstances a court may have discretion to enforce an award notwithstanding the existence of one of the conditions for refusal of enforcement set out in section 103, such circumstances must be limited and it would not be appropriate in this instance. For a fuller analysis of the decision see Legal update, Court of Appeal upholds Dallah decision.