LORD MANCE

Introduction

1. This appeal arises from steps taken by the appellant, Dallah Real Estate and Tourism Holding Company (“Dallah”), to enforce in England a final award dated 23 June 2006 made in its favour in the sum of US$20,588,040 against the Government of Pakistan (“the Government”) by an International Chamber of Commerce (“ICC”) arbitral tribunal sitting in Paris. The Government has hitherto succeeded in resisting enforcement on the ground that “the arbitration agreement was not valid ….. under the law of the country where the award was made” (Arbitration Act 1996, s.103(2)(b), reflecting Article V(I)(a) of the New York Convention), that is under French law. Dallah now appeals.

2. The award was made against the Government on the basis that it was “a true party” to an Agreement dated 10 September 1996 expressed to be made between and signed on behalf of Dallah and Awami Hajj Trust (“the Trust”). The Agreement contains an arbitration clause referring disputes or differences between Dallah and the Trust to ICC arbitration. The tribunal in a first partial award dated 26 June 2001 concluded that the Government was a true party to the Agreement and as such bound by the arbitration clause, and so that the tribunal had jurisdiction to determine Dallah’s claim against the Government. The central issue before the English courts is whether the Government can establish that, applying French law principles, there was no such “common intention” on the part of the Government and Dallah as would make the Government a party.