Lord Mustill and the Courts of Tennis – Dallah v Pakistan in England, France and Utopia
| Published date | 01 July 2012 |
| Author | Jan Kleinheisterkamp |
| DOI | http://doi.org/10.1111/j.1468-2230.2012.00918.x |
| Date | 01 July 2012 |
retained.141 The ISC’s alternative submissions demonstrate a willingness to
embrace a legal obligation to extend some benefits beyond fee-paying stu-
dents.142 Whilst this may have paved the way for a compromise between the
parties’ respective positions, it does not justify a re-interpretation of the law
which bears a greater resemblance to policy than the case law on which it
purports to be based.
Lord Mustill and the Courts of Tennis – Dallah vPakistan
in England, France and Utopia
Jan Kleinheisterkamp*
This note analyses the reasoning of the English and French courts in Dallah Real Estate and Tourism
Holding Co vMinistry of Religious Affairs, Government of Pakistan, in which an arbitral tribunal had
accepted jurisdiction over the Government of Pakistan on the basis of an arbitration agreement
concluded by a trust that was created, controlled,and then extinguished by the Government. It
highlights the English courts’ clarifications on the degree to which arbitral awards should benefit
from the presumption of validity at the stage of enforcement and discusses how the cultural
background of the English and French judges – and of the arbitrators – drove them to come to
contradictory results. Moreover, it argues that both judges and arbitrators, owing to the way the
parties framed their arguments, probably missed the proper solution of the case.
INTRODUCTION
It is hardly surprising that the English and the French love to disagree.1English
lawyers prefer to emphasise the business efficacy of a transaction and stick to the
wording of a contract;French lawyers insist on the need to see contractual terms
in the broader light of good faith and fair dealing – so the stereotype goes.
141 In its decision of 2 December 2011, theTribunal goes further and states that principle 2c is correct,
provided it is‘properly to be seen as directed at purposes rather than activities’ (n 15 above at [4]).
It is doubted whether that has been achieved (nor the additional proviso which would appear to
be implicit (from the same paragraph), that the concept of poverty in charity law is properly
reflected).
142 Similar to the suggestion by the hospital trustees in Re Resch, n 43 above, that fees which are
prohibitive except for the well-to-do would destroy charitable status.To state,however,that they
‘accepted’ this proposition (at [158]), implies that it was established law, which this author
disputes.
*London School of Economics.I would like to thank Manuel Penadés Fons and Hugh Collins for their
valuable remarks.The usual disclaimer applies.
1 For one of many examples see M. Mustill,‘The New Lex Mercatoria: the First Twenty-FiveYears’
(1988) Arbitration International 86, 112 note 95 (on the dangers of French‘unsuppor ted generalisa-
tions’ on English law).
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Jan Kleinheisterkamp
© 2012 TheAuthors. The Modern Law Review © 2012The Modern Law Review Limited. 639
(2012) 75(4) MLR 606–654
The case of Dallah Real Estate and Tourism Holding Co vMinistry of Religious
Affairs, Government of Pakistan2(Dallah) gave both English and French courts
ample opportunity to confirm many of the prejudices usually cultivated against
them by their critics on the respective other side of the Channel. Fur ther, the
case is a good illustration of how legal reasoning varies against the background
of different legal cultures and mentalities.This may have been the reason why
the proper solution of the case was missed both in the French and the English
courts.
Dallah essentially deals with the issue of the jurisdiction of an arbitral tri-
bunal over a party who never signed the contract, and thus the arbitration
agreement, under which the claim is brought. The preliminary question for
the English courts was at what stage and to what degree state courts can
review the arbitrators’ decision on their own jurisdiction. Both issues – the
extension of arbitration agreements to non-signatories and the scope of the
principle of competence-competence – are frequent topics in international
arbitration debates.3The Dallah case allowed the testing of many of the argu-
ments and conceptions ventilated in those debates, some innovative, some
daring and some rather blunt. The broader setting of the case and some
details thereof are also remarkable. Indeed, the English High Court, Court of
Appeals and Supreme Court unanimously found that the Dallah tribunal
erred in affirming its jur isdiction over the defendant – despite the fact that
one of the tribunal’s members was no less than Lord Mustill, who not only
served for decades in the House of Lords but is also a great pioneer of inter-
national arbitration.4Finally, the English courts had to make their finding
through the application of French law – only to find that the French court,
a few weeks later in annulment proceedings, eventually reached the exact
opposite result.
no09/28533, decision of 17 February 2011,full text at http://arbitration.practicallaw.com/8-505-
0043 (last visited 19 January 2012);abstract in [2011] Revue de l’arbitrage 186. For previous case notes
see G. Bermann, ‘The UK Supreme Court Speaks to Inter national Arbitration: Lear ning from
the Dallah Case’ (2011) 22 American Review of International Arbitration 1; G. Born and M. Jorek,
‘Dallah and the New York Convention’ KluwerArbitrationBlog (7 April 2011) at http://
kluwerarbitrationblog.com/blog/2011/04/07/dallah-and-the-new-york-convention/ (last visited
19 January 2012);N. Bouchardie et al,‘In Dallah, the Paris Court of Appeal and UK Supreme Court
Reach Contrary Decisions Applying Same Law to Same Facts’ (February 2011) at http://
www.whitecase.com/insight-03022011/ (last visited 19 January 2012); G. Cuniberti,‘Divergence
d’appréciation entre juges français et anglais du contrôle sur l’existence d’une convention arbitrale’
[2011/2] Cahiers de l’arbitrage 9; J. Grierson and M. Taok,‘Dallah: Conflicting Judgments from the
U.K.Supreme Court and the Par is Cour d’Appel’ (2011) 28 Journal of International Arbitration 407;
D. Khanna,‘Dallah:The Supreme Court’s Positively Pro-Arbitration“No” to Enforcement’ (2011)
28 Journal of International Arbitration 127;A. Martinez, ‘Dallah,a Tale ofTwo Judicatures’(2011) 14(2)
International Arbitration Law Review N4.
3 See, eg, the 25th Freshfields Lecture by Professor Bernard Hanotiau on 21 October 2010 on
‘Consent to Arbitration:Do we Share a CommonVision?’ (delivered in the presenceof two of their
Lordships), see A. Ross,‘Freshfields Lecture: Hanotiau criticises “Group of Companies” doctrine’
Global Arbitration Review of 25 October 2010.
4 For Lord Mustill’s role in this case see in more detail n 34–35 and 59–61 below.
Dallah vPakistan in England, France and Utopia
© 2012 TheAuthors. The Modern Law Review © 2012The Modern Law Review Limited.
640 (2012) 75(4) MLR 606–654
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