LLC Eurochem North-West-2 v Tecnimont SPA & Anor [2026] EWCA Civ 5

[2026] EWCA Civ 5Case No CA-2025-002968
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (KBD)
The Hon. Mr. Justice Butcher
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 13 January 2026
Before
LORD JUSTICE POPPLEWELLLORD JUSTICE PHILLIPSLADY JUSTICE MAY
Between
LLC EUROCHEM NORTH-WEST-2Appellant(1) TECNIMONT S.P.ARespondents(2) MT RUSSIA LLCRespondent
Graham Dunning KC and John Robb (instructed by Collins Botiuk) for AppellantAlan Maclean KC and Tom Leary (instructed by McDermott Will & Schulte UK LLP) for RespondentsHearing Hearing date : Thursday 18 December 2025
Approved JudgmentThis judgment was handed down remotely at 10.00am on Tuesday 13 January 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]This appeal raises a short point of statutory construction: whether as a matter of law the court has power under s. 42 of the Arbitration Act 1996 (‘the Act’) to make an order enforcing a peremptory order of an arbitration tribunal granting anti-suit relief.[2]The appellant (‘NW2’) is a Russian company. Its immediate parent is another Russian company (‘MCC’) and its ultimate parent is Eurochem Group AG (‘Eurochem’). The second respondent (‘MT Russia’) is also a Russian company, as its name suggests, and is majority owned by first respondent (‘Tecnimont’), an Italian company. Tecnimont and MT Russia brought claims against NW2 in a London seated arbitration. The experienced tribunal made peremptory orders against NW2 granting interim anti-suit relief to restrain and/or remedy proceedings brought by NW2 in Russia in breach of the arbitration agreement, such proceedings being(1) substantive proceedings to recover the amounts counterclaimed by NW2 in the arbitration; and(2) applications for anti-arbitration injunctions, supported by interim measures, to restrain Tecnimont and MT Russia from pursuing the London arbitration. On 21 November 2025 Butcher J (‘the Judge’) granted anti-suit relief in the form which the tribunal had peremptorily ordered, pursuant to s. 42 of the Act. He granted leave to appeal.[3]The sole ground of appeal by NW2 is that, although it accepts that the tribunal had power to make the original non-peremptory anti-suit orders, nevertheless the court has no power to enforce peremptory orders for anti-suit relief under s. 42 of the Act. It contends that such power is confined to orders which are “necessary for the proper and expeditious conduct of the arbitration proceedings”; that interim anti-suit relief is incapable of fulfilling that requirement because it seeks to enforce the negative covenant not to be vexed by foreign proceedings found in the original arbitration agreement rather than any contract or duty arising out of the reference; and that interim anti-suit relief, which is “external” to the reference, can only be sought and granted by the court pursuant to s. 37 of the Senior Courts Act 1981 (‘SCA’).[4]The Judge held that he did not need to consider whether it might also have been possible to grant an injunction under s. 37 SCA, a jurisdiction which Tecnimont and MT Russia had sought to invoke, in the alternative to s. 42 of the Act, by an amendment to their application notice. On this appeal Tecnimont and MT Russia say that the Judge was correct to grant the relief under s. 42 of the Act for the reasons he gave; but that if the appeal is allowed on s. 42, this court should grant the same relief pursuant to the power under s. 37 SCA, pursuant to a Respondent’s Notice issued by them. NW2 disputes that Tecnimont and MT Russia are entitled to invoke the s. 37 SCA jurisdiction in this court by way of a Respondent’s Notice, or that the Court can properly consider exercising that jurisdiction.[5]Males LJ granted expedition and we heard the appeal on 18 December 2025. At the conclusion of the hearing we announced our decision that the appeal would be dismissed. These are my reasons for concurring in that decision. In short, the Judge was right in his construction of the Act, essentially for the reasons he gave.

The underlying dispute

[6]Tecnimont and MT Russia (together ‘the Contractors’) were engaged by NW2 as engineering procurement and construction contractors to build a urea and ammonia plant in Kingisepp, Leningrad Region, Russia. Three contracts were entered into each dated 1 June 2020. There was an offshore engineering and procurement contract between MTR and NW2; an onshore engineering, local procurement and construction contract between Tecnimont and NW2; and a coordination and interface agreement between both the Contractors and NW2. The contracts contain materially identical dispute resolution clauses, providing for any disputes between the parties to be referred to London arbitration under the Rules of Arbitration of the International Chamber of Commerce (‘the ICC Rules’). The offshore contract and the coordination interface agreement are governed by English law.[7]The ICC Rules contain a provision at Article 28 that “the arbitral tribunal may, at the request of a party, order any interim or conservatory measure it deems appropriate.” It was common ground before us that this conferred a power on the tribunal to make the original anti-suit orders in question. NW2 argued before the Judge that the orders were final rather than interim, but that contention was rejected by the Judge and there is no appeal from that aspect of his judgment.[8]It has always been the contention of the Contractors that NW2 is owned and controlled by a wealthy Russian national Mr Andrey Melnichenko, and that was held to be the case by Bright J in a recent trial of claims by NW2 against banks who posted performance bonds supporting the Contractors’ obligations: LLC EuroChem North-West-2 v Societe Generale SA [2025] EWCA 1938 (Comm). Mr Melnichenko is a designated person under the Russia (Sanctions) (EU Exit) Regulations 2019 and was subjected to EU sanctions which resulted in the Contractors, as they put it, suspending the contracts in May 2022. It is the Contractors’ case in the arbitration that export controls on dual-use goods pursuant to EU Council Regulation 328/2022 and EU Council Regulation 269/2014 precluded them from obtaining numerous items that were necessary to perform the contractual services, despite making many applications for export authorisation; and that several of their vendors and service providers also refused to supply items for use in Russia. The Contractors also maintained and maintain that Mr Melnichenko’s ownership and control of NW2 means that they could not perform the contracts in any manner which would involve Tecnimont providing economic resources to NW2 in any event, since to do so would be in breach of the EU economic sanctions regime.[9]NW2 disputed the validity of the Contractor’s suspension of performance and, on 4 August 2022, purported to terminate the contracts on account of the Contractors’ alleged breach of contract. The Contractors contend that the termination was unlawful.

The arbitration and Russian proceedings

[10]On 15 August 2022 the Contractors commenced the London arbitration against NW2 and Eurochem. The three-panel tribunal was constituted (‘the Tribunal’) and NW2 filed a defence (Answer) and a counterclaim seeking some €1 billion in damages for breach of contract and return of advance payments. Initially NW2 participated in the arbitration, in which a two-week final hearing is due to take place in January 2026 (although that date may be in jeopardy as a result of one of the arbitrators recently resigning due to ill-health). In parallel to the arbitration, NW2 pursued proceedings in the Commercial Court against the banks who had posted performance bonds, as I have said. Bright J’s judgment following the trial was delivered on 31 July 2025. He dismissed NW2’s claims, holding that the bonds were unenforceable by reason of the EU sanctions regime. The Contractors characterise this as potentially fatal to NW2’s position in the arbitration.[11]Following Bright J’s decision NW2’s attitude to the arbitration proceedings changed and the group started to litigate the arbitral disputes in Russia. On 4 August 2025 MCC commenced proceedings against the Contractors, naming NW2 as a third party, in the Moscow Arbitrazh Court (‘the First Russian Proceedings’). MCC sought to claim on behalf of NW2 the sums counterclaimed by NW2 in the arbitration.[12]On 2 September 2025 NW2 filed further proceedings against MT Russia in the Moscow Arbitrazh Court (‘the Second Russian proceedings’), to which Tecnimont was later added as a co-defendant on 27 October 2025. These too sought recovery of the sums counterclaimed in the arbitration, pursuant to Article 248.1 of the Arbitrazh Procedural Code (‘the APC’). On the same day, 2 September 2025, the Tribunal directed NW2 to make an application to stay the Second Russian Proceedings. NW2 applied to stay the proceedings as directed. However, the Moscow Court nevertheless listed a preliminary hearing for 27 October 2025.[13]On 2 October 2025 NW2 filed two sets of proceedings in the St Petersburg Arbitrazh Court, one against MT Russia and one against Tecnimont. These sought injunctions against the Contractors pursuant to article 248.2 of the APC preventing the Contractors from continuing the arbitration proceedings or instituting similar foreign proceedings. I will refer to these as ‘the anti-arbitration proceedings”. In those proceedings NW2 relied on the contention that EU Sanctions law contradicts the public order of the Russian Federation and that because the arbitration is seated in London it is in an unfriendly foreign state.[14]On 5 October 2025 the Tribunal ordered NW2 not to take any step in relation to the first anti-arbitration proceedings (against Tecnimont). On 6 October 2025 it ordered NW2 to withdraw the first anti-arbitration proceedings by 8 October 2025. On 9 October 2025 it ordered NW2 to withdraw the second anti-arbitration proceedings (against MT Russia) by 13 October 2025. NW2 did not comply with any of those orders.[15]On 13 October 2025 the Tribunal issued Procedural Order 18 (‘PO18’). It concluded that the Second Russian Proceedings and the anti-arbitration proceedings constituted flagrant breaches of the arbitration agreements between the parties. It made peremptory orders that NW2 should, amongst other things, withdraw the Second Russian Proceedings and the anti-arbitration proceedings immediately, and provide written evidence of having done so by 16 October 2025. It also gave the Contractors permission to make a section 42 application to the court to enforce the peremptory orders. NW2 did not comply with PO18.[16]On 17 October 2025 the Contractors issued an arbitration claim form in the Commercial Court seeking orders to enforce PO18 pursuant to s. 42 of the Act.[17]On 26 October 2025, the Tribunal issued Procedural Order 20, which corrected certain immaterial errors in PO18 and dismissed certain applications made by Eurochem, including for PO18 to be reconsidered by the Tribunal in respect of certain directions against Eurochem.[18]On 29 October 2025 Jacobs J permitted service out and alternative service on NW2 of the s. 42 arbitration claim form and made directions for an expedited hearing to take place on 21 November 2025.[19]On the same day, 29 October 2025, NW2 applied ex parte to the Moscow Arbitrazh Court in the Second Russian Proceedings for interim measures comprising the seizure of moveable funds and property of the Contractors to a value of approximately €103 million (‘the Interim Measures Application’). The following day, 30 October 2025, the Contractors, having learned of the Interim Measures Application, made an urgent application to the Tribunal for an order requiring NW2 to withdraw the Interim Measures Application and have any interim measures order discharged. On 31 October 2025 the Tribunal ordered NW2 to withdraw the Interim measures application and have any consequent order discharged. Unbeknownst to the Contractors and the Tribunal the Moscow Arbitrazh Court had in fact granted the Interim Measures Application on 30 October 2025 (‘the Interim Measures Order’). NW2 did not comply with the Tribunal’s 31 October order.[20]On 6 November 2025 the Moscow Arbitrazh Court confirmed that the First Russian Proceedings had been “returned”, which meant in effect that the proceedings had been withdrawn by MCC. It may have been as a result of a failure to lodge a particular document, but in any event seems to have had the effect of bringing those proceedings to an end.[21]On 11 November 2025 the Tribunal issued Procedural Order 22 (‘PO22’), holding that NW2 was in breach of its order of 31 October and making a peremptory order that NW2 take all steps necessary or appropriate to extinguish or discharge the Interim Measures Order by 13 November 2025. Once again NW2 failed to comply.[22]On 14 November 2025 the Tribunal issued Procedural Order 23 (‘PO23’), holding NW2 to be in breach of PO18 in failing to withdraw the Second Russian Proceedings and making a further peremptory order that it should do so by 14 November 2025. NW2 did not comply.[23]On 18 November 2025 the Contractors applied to amend the s. 42 application to include relief in respect of the additional Peremptory orders PO22 and PO23 issued by the Tribunal since the issue of the s. 42 application; and to seek in the alternative the equivalent relief pursuant to s. 37 SCA.[24]On 21 November 2025 the Judge heard the s. 42 application and amendment application. He allowed the amendments, albeit doing so at the end of the hearing having given judgment. The Judge gave an ex tempore judgment granting the relief sought under s. 42 of the Act, which I address further below. His order (‘the Judge’s Order’) was an injunction, endorsed with a penal notice, that NW2 must comply immediately with the PO22 and PO23 peremptory orders of the Tribunal including that:(1) NW2 withdraw the Second Russian Proceedings forthwith and with immediate effect;(2) NW2 withdraw the anti-arbitration proceedings with immediate effect, and provide written evidence to the Tribunal confirming that they have been withdrawn forthwith;(3) NW2 be restrained from taking any steps to enforce the Interim Measures Order and shall immediately take all steps necessary or appropriate to extinguish or discharge it forthwith; and provide written confirmation to the Tribunal confirming that the Interim Measures Order had been or would be extinguished or discharged forthwith.[25]The Judge granted leave to appeal on the limited point identified, on the basis that it was a point of sufficient general importance and that an appeal could only be pursued if he gave leave by reason of s. 42(5).[26]NW2 did not comply with the Judge’s Order. On 24 November 2025 NW2 applied for a stay of execution. On 25 November 2025 the Contractors wrote to the Commercial Court opposing the stay application and asking that the Judge’s judgment and Order be reopened for him to determine the application for injunctive relief additionally on the alternative jurisdictional basis of s. 37 SCA.[27]On 26 November 2025 the St Petersburg Arbitrazh Court adjourned the anti-arbitration proceedings to hearings on 10 December 2025.[28]On 27 November 2025 the Judge dismissed NW2’s application for a stay, on the grounds that its argument that it would suffer prejudice if no stay were granted was contradicted by its position that it would not comply with the Order, whereas a stay would leave the Contractors exposed to the impact of the Russian proceedings brought by NW2 in breach of the arbitration agreements. He also refused the application by the Contractors for him to reopen his judgment and Order to deal with the s. 37 SCA basis for a claim. He did so on the grounds that it had been the Contractors’ case that if relief was granted under s. 42 there was no need for relief pursuant to s. 37 SCA; that there was a real issue as to whether it was appropriate to grant s. 37 relief in circumstances where the Tribunal was still arguably seised of the anti-suit injunctions; and that it would be open to the Contractors to submit in the Court of Appeal, by way of Respondent’s Notice or otherwise, that the s. 42 order should be replaced by an order under s. 37 SCA.[29]On the same day, 27 November 2025, the Moscow Arbitrazh Court handed down judgment in favour of NW2 against the Contractors in the Second Russian Proceedings, awarding damages in an amount equivalent to approximately US$2.19 billion. It comes into effect one month after publication of the full text.[30]On 2 December 2025 NW2 filed its notice of appeal from the Judge’s Order and sought a stay of the Order pending the appeal. On 4 December 2025 Males LJ refused the stay application on the grounds that NW2 had made clear that it would not comply with the Judge’s Order. He ordered an expedited hearing of the appeal to be listed on 18 December 2025.[31]On 10 December 2025, the St Petersburg Arbitrazh Court heard and granted the anti-arbitration applications. The Contractors say that if they fail to comply they are exposed to penalties running to the equivalent of about €860 million, which form an existential threat to MT Russia’s business.

The statutory provisions

[32]The parties relied in particular on the following provisions of the Act. 40. General duty of parties.(1) The parties shall do all things necessary for the proper and expeditious conduct of the arbitral proceedings.(2) This includes— (a) complying without delay with any determination of the tribunal as to procedural or evidential matters, or with any order or directions of the tribunal, and (b) where appropriate, taking without delay any necessary steps to obtain a decision of the court on a preliminary question of jurisdiction or law (see sections 32 and 45).[41]Powers of tribunal in case of party’s default.(1) The parties are free to agree on the powers of the tribunal in case of a party’s failure to do something necessary for the proper and expeditious conduct of the arbitration.(2) Unless otherwise agreed by the parties, the following provisions apply. … (5) If without showing sufficient cause a party fails to comply with any order or directions of the tribunal, the tribunal may make a peremptory order to the same effect, prescribing such time for compliance with it as the tribunal considers appropriate. 41A Emergency arbitrators … (2) Unless otherwise agreed by the parties, if without showing sufficient cause a party fails to comply with any order or directions of the emergency arbitrator, the emergency arbitrator may make a peremptory order to the same effect, prescribing such time for compliance with it as the emergency arbitrator considers appropriate. 42 Enforcement of peremptory orders of tribunal or emergency arbitrator. (1) Unless otherwise agreed by the parties, the court may make an order requiring a party to comply with a peremptory order made by the tribunal or (as the case may be) the emergency arbitrator. (2) An application for an order under this section may be made— (a) by the tribunal or the emergency arbitrator (upon notice to the parties), (b) by a party to the arbitral proceedings with the permission of the tribunal or the emergency arbitrator (and upon notice to the other parties), or (c) where the parties have agreed that the powers of the court under this section shall be available.(3) The court shall not act unless it is satisfied that the applicant has exhausted any available arbitral process in respect of failure to comply with the peremptory order.(4) No order shall be made under this section unless the court is satisfied that the person to whom the peremptory order was directed has failed to comply with it within the time prescribed in the order or, if no time was prescribed, within a reasonable time. … 82 Minor Definitions (1) In this Part “peremptory order” means an order under s. 41(5) or made in exercise of any corresponding power conferred by the parties[33]Sections 40 to 42 envisage three stages. First a non-peremptory order or directions by the tribunal, which might be made under a myriad of powers conferred by the Act or by the parties so far as not prohibited by the Act. Secondly a peremptory order of the tribunal “to the same effect” as the non-peremptory order or direction, for which the power lies in s. 41(5) of the Act (or s. 41A in the case of an emergency arbitrator). Thirdly a court order requiring a party to comply with a peremptory order made by the tribunal or (as the case may be) the emergency arbitrator, for which the power lies in section 42 of the Act.[34]Also relevant are the following provisions of the Act: 1 General principles. The provisions of this Part are founded on the following principles, and shall be construed accordingly—(a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense;(b) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest;(c) in matters governed by this Part the court should not intervene except as provided by this Part. 38 General powers exercisable by the tribunal. (1) The parties are free to agree on the powers exercisable by the arbitral tribunal for the purposes of and in relation to the proceedings. (2) Unless otherwise agreed by the parties the tribunal has the following powers. (3) The tribunal may order a claimant to provide security for the costs of the arbitration…. (4) The tribunal may give directions in relation to any property which is the subject of the proceedings or as to which any question arises in the proceedings, and which is owned by or is in the possession of a party to the proceedings— (a) for the inspection, photographing, preservation, custody or detention of the property by the tribunal, an expert or a party, or (b) ordering that samples be taken from, or any observation be made of or experiment conducted upon, the property. (5) The tribunal may direct that a party or witness shall be examined on oath or affirmation, and may for that purpose administer any necessary oath or take any necessary affirmation. (6) The tribunal may give directions to a party for the preservation for the purposes of the proceedings of any evidence in his custody or control.

The judgment

[35]The Judge first addressed and dismissed an argument by NW2 that the Tribunal had no jurisdiction to make the orders under PO18, PO22 and PO23 because they were not interim or conservatory measures within the meaning of article 28 of the ICC Rules. There is no appeal from that aspect of his finding.[36]Next he considered NW2’s argument that the power to enforce a peremptory order made under s. 41(5) of the Act is limited to orders relating to a party’s failure to do something necessary for the proper and expeditious conduct of the arbitration; and that an anti-suit injunction is not such an order. He rejected this for the following two reasons, each of which was sufficient. First, where any order is made by a tribunal, compliance with it is to be treated as necessary for the proper and expeditious conduct of the arbitration. That followed from the wording of s. 40(2)(a) of the Act and was supported by the decision of Burton J in Pearl Petroleum Company Ltd v Kurdistan Regional Government of Iraq [2015] EWHC 3361 (Comm) (‘Pearl Petroleum’). Secondly the anti-suit orders in this case were properly described as necessary for the proper and expeditious conduct of the arbitration. That was a natural interpretation of the words used and was supported by Gee on Commercial Injunctions 7th edn. para 6.61 which states:
“Section 42 includes a power for the court to enforce a peremptory order made by the tribunal where there has been a failure by a party to comply with an interim anti-suit order made by the tribunal, provided it has been made by the tribunal acting within its jurisdiction.”
[37]The Judge went on to address a submission that what Lord Mance JSC said at [48] of AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] UKSC 35 [2013] 1 WLR 1889 (‘AES’) meant that the only avenue for anti-suit relief was under s. 37 SCA. The Judge rejected that argument, first because it did not take into account s. 40(2)(a) and the decision in Pearl Petroleum; and secondly because that passage in AES was concerned with a freestanding application under s. 44, which is distinguishable from the instant case where the application was made not merely to enforce a negative obligation not to commence foreign proceedings, but rather to give effect to the positive obligation to comply with an order of the Tribunal.[38]Finally the Judge addressed and rejected arguments that he should not exercise his discretion under s. 42. There is no appeal from that aspect of his decision.

The submissions

[39]The sole ground of appeal for which leave was granted is expressed as follows:
“…the learned Judge was wrong to grant an anti-suit injunction under s.42 of the Arbitration Act 1996, because orders under s.41 and s.42 of the Arbitration Act 1996 are concerned with a party’s conduct of the arbitral reference, as opposed to the pursuit of different proceedings in a different forum. This limitation is evident from the terms of s.41(1) of that Act (“failure to do something necessary for the proper and expeditious conduct of the arbitration”). The Judge’s approach confuses matters internal and matters external to the arbitration reference; and would (if correct) have the result of converting s.40 of the Act into a statutory (c.f. merely contractual) obligation not to pursue claims in any forum other than the arbitral forum defined by the arbitration agreement. An anti-suit injunction therefore cannot be granted by the Court under s.42 of the Arbitration Act 1996 (just as it cannot be granted under s.44 of the Arbitration Act 1996), but must instead (if at all) be granted under s.37 of the Senior Courts Act 1981; or, alternatively, in appropriate cases, by s.66 of the Arbitration Act 1996 i.e. by way of enforcement of an arbitral tribunal’s final award.”
[40]The submissions of Mr Dunning KC, who presented the argument on behalf of NW2, may be summarised as follows. There is a well-recognised distinction between the contractual agreement between the parties arising from their arbitration agreement made prior to the coming into existence of disputes and the contractual agreement(s) specific to a reference to a tribunal to determine a particular dispute or disputes (Black Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1981] 2 Lloyd’s Rep 446). I shall call these the umbrella arbitration agreement and the reference agreement(s) respectively. Anti-suit relief is granted pursuant to the negative obligation contained in the umbrella arbitration agreement not to seek relief in any other forum (see e.g. AES at [1]). By contrast sections 33 to 45 of the Act, and in particular sections 40 to 42, were concerned with specific arbitral proceedings, and the words “conduct of the arbitration” in s. 41(1) and “conduct of the arbitral proceedings” in s. 40 referred to the conduct of particular references. Section 41(5) was qualified by s. 41(1) so that the tribunal could only make a peremptory order for failure to do something which was necessary for the proper and expeditious conduct of the arbitration. Anti-suit relief can never be necessary for the proper and expeditious conduct of the arbitration. This was established by what Lord Mance JSC said at [48] of AES (with whom the other Justices agreed). In particular he made clear that jurisdiction to grant anti-suit relief arose under s. 37 SCA, and that section 44 of the Act neither excluded nor duplicated that power. Section 44 was not an available source of jurisdiction to grant anti-suit relief because anti-suit relief was for breach of the negative covenant in the umbrella arbitration agreement and could not therefore come within a power “for the purposes of and in relation to arbitral proceedings”. That expression is wider than “necessary for the proper and expeditious conduct of the arbitration”, used in s. 41(1), so that AES makes clear a fortiori that anti-suit relief cannot be for the proper and expeditious conduct of the arbitration. This approach is supported by paragraph 212 of the Report on the Arbitration Bill by the Departmental Advisory Committee on Arbitration Law chaired by Lord Justice Saville (‘the DAC Report’) which said of clause 42: “Although in Clause 41 we have provided the tribunal with powers in relation to peremptory orders, it seemed to us that the Court should have power to order compliance with such orders, though (unless the parties have agreed) these can only be invoked with the permission of the tribunal. In our view there may well be circumstances where in the interests of justice, the fact that the Court has sanctions which in the nature of things cannot be given to arbitrators (eg committal to prison for contempt) will assist the proper functioning of the arbitral process. This Clause is a good example of support the Court can give to that process…..” (Mr Dunning’s emphasis)[41]Mr Dunning further submitted that given the careful qualifying control on peremptory orders in s. 41(1), section 40(2)(a) could not properly be construed as making complying with any and all orders or directions of the tribunal something which is necessary for the proper and expeditious conduct of the arbitral proceedings. The Judge’s reasoning that failure to comply with any order the tribunal had power to make fell within that rubric was circular.[42]On behalf of the Contractors Mr Maclean KC supported the reasoning of the Judge, and relied also on s. 41A which, unlike s. 41(1), does not contain the “necessary for the proper and expeditious conduct of the arbitration” wording. He submitted, therefore, that the power of an emergency arbitrator to grant anti-suit relief could not on any view be read as subject to such qualification; and that there is no logical or good commercial reason for the emergency arbitrator’s powers to make interim anti-suit orders as peremptory orders to be any wider than those of the tribunal once constituted.

Analysis and conclusions

[43]There was no real dispute about the principles applicable to statutory construction, following the Supreme Court decisions in R (O) v Secretary of State for the Home Department [2022] UKSC 3 [2023] AC 255; and Potter v Canada Square Operations Ltd [2023] UKSC 41 [2023] 3 WLR 963. Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words under consideration. Words and passages in a statute derive their meaning from their context, and must be read in the context of the section as a whole, a relevant group of sections, and the statute as a whole. The words are the primary source by which meaning is ascertained.[44]A statutory amendment can in some circumstances be used as an aid to construction of the unamended wording of an Act, but the nature and boundaries of those circumstances are less well defined. It is not necessary to seek to define them in this case. An amendment may be taken into account, at least, if the words of the statute are genuinely ambiguous (see for example Open Spaces Society v Secretary of State for the Environment, Food and Rural Affairs [2021] EWCA Civ 241 at [36]-[38]).[45]NW2’s argument depends upon establishing each of two propositions:(1) the tribunal has jurisdiction to make a peremptory order under s. 41(5) only if the failure to comply with a non-peremptory order or directions is a failure to do something which is necessary for the proper and expeditious conduct of the arbitration; and(2) compliance with orders or directions for anti-suit relief are not capable of being something necessary for the proper and expeditious conduct of the arbitration.[46]I formulate the propositions in that way because it was common ground that the appeal was advanced as a question of law which applied to all anti-suit relief of the kind contained in PO18, PO22 and PO23, irrespective of the facts of this case. There are two different forms of anti-suit relief contained in those orders. One is anti-suit relief to prevent parallel proceedings being pursued in the non-contractual forum. The other is anti-suit relief to prevent proceedings in the non-contractual forum to restrain or impede pursuit of the arbitration reference. I shall refer to the former as parallel proceedings relief and the latter as anti-anti-arbitration relief, and the two collectively as anti-suit relief. Mr Dunning’s submission was that that both forms of anti-suit relief were outside the scope of peremptory orders enforceable under s. 42 of the Act; but as a fall back he argued that at least parallel proceedings were.[47]I would reject both propositions for reasons which I will state and then expand upon more fully. As to the first, s. 41(5) is not qualified in the way suggested, but allows a peremptory order to be made for any failure to comply with an order or directions of the tribunal, whether or not necessary for the proper and expeditious conduct of the arbitration, subject only to the possible qualification that the order or directions must be ones which the tribunal had power to make. Mr Maclean submitted that the power or jurisdiction of the tribunal to make the non-peremptory orders, preceding peremptory orders “to the same effect”, was a matter which went only to the exercise of discretion under s. 42, not as to what orders or directions fell within s. 41(5). It appears that that was accepted by Mr Millett KC appearing for NW2 before the Judge (see Judgment at [36]), although before us Mr Dunning did not accept that position and maintained that the only orders or directions which can come within s. 41(5) are orders or directions which the tribunal has power to make. It is not necessary to decide that dispute because it is now common ground that the Tribunal had power under article 28 of the ICC Rules to make the non-peremptory orders in this case.[48]As to the second proposition, compliance with the non-peremptory orders for anti-suit relief which gave rise to PO18, PO22 and PO23 fell within the scope of something “necessary for the proper and expeditious conduct of the arbitration”, both because(i) compliance with an order of the tribunal acting within its powers is always something necessary for the proper and expeditious conduct of the arbitration as s. 40(2)(a) of the Act makes clear; and(ii) in any event, anti-suit relief of the kind granted in this case is capable of being necessary for the proper and expeditious conduct of the arbitration.

Is s 41(5) qualified by s. 41(1)?

[49]There is nothing in the wording of s. 41(5) of the Act which restricts the kind of non-peremptory orders or directions which may give rise to peremptory orders. On the contrary the subsection uses the wide and unqualified words “any order or directions”. The word “any” is of unlimited breadth and prima facie should be taken to mean what it says, subject only to the possible qualification I have mentioned that it be one the tribunal has power to make. It means, in its colloquial and dictionary sense, “no matter which or what” (R (Jackson) v Attorney General [2005] UKHL 56 [2006] 1 AC 262 per Lord Bingham at [29]).[50]Mr Dunning’s argument is that s. 41(1) imposes the qualification indirectly via s. 41(2). The first part of section 41(2) must be read to mean “Unless otherwise agreed by the parties [as permitted by s. 41(1)]” i.e. “Unless otherwise agreed by the parties [to confer a power on the tribunal in the case of a party’s failure to do something necessary for the proper and expeditious conduct of the arbitration]”. In the second part of s. 41(2) the words “the following provisions apply” must therefore be read as if followed by the words “[as to the powers of the tribunal in case of a party’s failure to do something necessary for the proper and expeditious conduct of the arbitration]”.[51]This is to place more weight on the words of s. 41(1) and 41(2) than they will bear. Section 41(2) contains no such wording as has to be read in to support Mr Dunning’s argument. It simply provides that in the absence of agreement between the parties the following provisions of the section apply. Section 41(1) is merely permissive, but is clarificatory and not the sole source of the freedom of the parties to agree on the powers of the tribunal for failures to do something necessary for the proper and expeditious conduct of the arbitration. The scheme of the Act is that, quite apart from the express powers conferred on the tribunal by the Act, the parties are free to agree to confer any powers they choose on the tribunal, subject only to the qualification that they do not detract from those in the sections in Part 1 of the Act which are designated in Schedule 1 as compulsory (which do not include sections 41 or 42). That is the consequence of the contractual nature of the arbitration agreement and the reference contract; and of the principle of party autonomy recognised in section 1(b). Section 38 of the Act recognises the freedom of the parties to agree on powers exercisable by the tribunal “for the purposes of and in relation to the proceedings”. These words are at least as wide as necessary “for the proper and expeditious conduct of the arbitration”; indeed Mr Dunning contended, by reference to the same words in s. 44, that they were wider. The permissive words of s. 41(1) are therefore no more than confirmatory of a freedom to agree matters which already exists under the principle of party autonomy and pursuant to s. 38 of the Act. It is wrong to describe them as words of qualification.[52]If there were any genuine ambiguity about this, it is resolved by s. 41A of the Act. Section 41A was inserted into the Act by the Arbitration Act 2025, together with the amendments in s. 42 to refer to peremptory orders of emergency arbitrators, to cater for provisions in institutional Rules, such as those of the ICC or the London Court of International Arbitration, which provide that where urgent interim or conservatory measures are required before the tribunal can be validly constituted, an emergency arbitrator can be appointed with power to grant such interim or conservatory measures. Typically such rules provide that once the tribunal is constituted, the emergency arbitrator’s order can be reviewed and discharged or amended by the Tribunal. Article 29 of the ICC Rules so provides. As Mr Mclean correctly observed, there is no equivalent to s. 41(1) in s. 41A, and no room to interpret the emergency arbitrator’s power to make peremptory orders conferred by s. 41A(2), which is in materially identical terms to the power conferred on a duly constituted tribunal under s. 41(5), as limited to failures to comply with a non-peremptory order which is necessary for the proper and expeditious conduct of the arbitration. Mr Dunning accepted that this is so as a matter of interpretation of s. 41A. There is no logic or commercial sense in the court’s powers to enforce orders made by a duly constituted tribunal as being narrower than its power to enforce equivalent orders made by an emergency arbitrator, especially where the powers conferred on each by the Rules is identical, as they are in Articles 28 and 29 of the ICC Rules. It would have the commercially absurd consequence, if NW2 were correct, that an emergency arbitrator, if appointed just before the tribunal were duly constituted, would have power to make a peremptory anti-suit order, enforceable by the court, which otherwise the tribunal constituted the next day would have no power to make, and the court no power to enforce. When enacting the 2025 Act, Parliament must have proceeded on the understanding that s. 41(5) was not qualified by s. 41(1) and the Act in its present form, containing identical wording in s. 41(5) for tribunals and s. 41A(2) for emergency arbitrators, must be read as whole and giving the same expressions the same meaning.[53]To my mind the answer is clearly yes. That is what section 40(2)(a) says. Mr Dunning’s argument has to read it as if the words “any order or directions of the tribunal” were followed by the words “[which is necessary for the proper and expeditious conduct of the arbitral proceedings]”. But it contains no such qualification; rather it again uses the wide and unlimited expression “any order or directions”. It is easy to see why that should have been the parliamentary intention. Section 40 is dealing with the duties of the parties and one would expect a party to be under a duty to comply with any and all orders of the tribunal which the tribunal had power to make (again assuming, without deciding, that there is at least that qualification). Requiring it to do so gives effect to the principle of party autonomy, because each party has agreed to confer that power on the tribunal; and has agreed that the reference shall be governed by the supervisory law of the seat and therefore to the application of s. 40 of the Act. Mr Dunning’s submission leads to the unattractive conclusion that there are certain classes of order which a tribunal has power to make (including interim anti-suit relief), which the party against whom the order is made has no duty to obey. It is entirely understandable that this is not what was intended in an Act whose purpose is to support arbitration. It is obviously conducive to the proper conduct of the reference that a party should not be free simply to thumb its nose at an order made against it by the tribunal. That imperative extends to all orders properly made against a party, without exception.[54]This was the conclusion expressed by Burton J in Pearl Petroleum at [24(iv)], albeit in a case concerned with an interim payment not anti-suit relief.[55]The answer is obviously yes. Take first anti-anti-arbitration relief. It is designed to prevent or remedy anti-arbitration relief being sought or granted in the non-contractual forum. That anti-arbitration relief typically takes the form of an injunction restraining a claimant pursuing the reference and/or requiring it to withdraw its claim in the reference, for the purpose of bringing the conduct of the arbitration to a halt and with the intended effect of preventing an award being made in the claimant’s favour. I simply do not understand how it can sensibly be said that anti-anti-arbitration relief, whose purpose and intended effect is to negate a such a step by a respondent, is other than concerned with the proper and expeditious conduct of the arbitration.[56]That may be equally true of parallel proceedings relief. Suppose that the effect on the claimant of contesting the proceedings in the non-contractual forum were such as to deprive it of sufficient resources to be able to pursue its claim in the arbitration. It is self-evident that preventing that happening would be concerned with the proper and expeditious conduct of the arbitration. Indeed there is no need to posit such an extreme case. I would have thought that many parallel proceedings are likely to have some potential effect on the conduct of the arbitration by diversion of time, resources and attention, and interfering with expedition, although each case will turn on its own facts. Certainly they are capable of having such an effect in some cases, which is all that is relevant for the issue in the form it arises in this court.[57]It is also possible to conceive of cases in which the pursuit of parallel proceedings will prevent or impede enforcement of an award; and I would treat the conduct of the arbitration as including matters going to enforceability of the award (for example the exercise of a power to order security for costs, or for the claim to be secured), in just the same way as order for security for costs or an order for conditional leave to defend in a summary judgment application in court proceedings would be regarded as orders made for the purpose of the conduct of those proceedings. This was conceded by Mr Millett in his skeleton argument to this court, but not by Mr Dunning. It is at least clear that matters concerned with the enforceability of the award come within the expression “for the purposes of and in relation to arbitral proceedings” in s. 44 of the Act because freezing orders are a classic example of the exercise of the power in s. 44(2)(e) 44(3), and there is also a power under s. 44(2)(c) to order preservation of property which is the subject matter of the claim.[58]In this case the Judge said at [51] that the anti-suit relief sought in this particular case was necessary for the proper and expeditious conduct of the arbitration. That is a finding of fact which was not challenged on the appeal by reference to the facts of the case, but only on the basis, which I have rejected, that anti-suit relief is not as a matter of law capable of being for the proper and expeditious conduct of an arbitration.[59]There is nothing in AES which points to a different conclusion. In that case the issue was whether an anti-suit injunction could be granted pursuant to s. 37 SCA when the applicant had not commenced arbitration proceedings and had no intention of doing so. The argument advanced by the respondents which Lord Mance JSC was addressing in the passage relied on by Mr Dunning was that s. 44 of the Act was the only available source for the power to grant anti-suit relief, but was unavailable where there was no existing or intended reference (see [29]-[30]. Section 44 provides in relevant part: 44 Court powers exercisable in support of arbitral proceedings.(1) Unless otherwise agreed by the parties, the court has for the purposes of and in relation to arbitral proceedings the same power of making orders (whether in relation to a party or any other person) about the matters listed below as it has for the purposes of and in relation to legal proceedings.(2) Those matters are— … (e) the granting of an interim injunction or the appointment of a receiver.(3) If the case is one of urgency, the court may, on the application of a party or proposed party to the arbitral proceedings, make such orders as it thinks necessary for the purpose of preserving evidence or assets.[60]That argument was rejected by the judge, the Court of Appeal and the Supreme Court. The ratio of the decision on that aspect of the case is contained in [43], namely that the fact that the court’s powers under s. 44(2)(e) are exercisable only “for the purposes of and in relation to arbitral proceedings” and depend upon such proceedings being on foot or “proposed” (s. 44(3)) was sufficient in itself to indicate that s. 44 had no bearing on the question whether s. 37 SCA empowered the court to grant anti-suit relief. What was said in the next paragraphs from [44] were some obiter remarks about the respondent’s submissions on the application of s. 44(2)(e) where arbitration proceedings are on foot or proposed. In that context Lord Mance JSC said at [46] that the negative right not to be vexed by foreign proceedings (which s. 37 SCA can protect) is a right of a different character from the procedural rights with which s. 44(2) is mainly, at least, concerned. At [48] he said: “The better view, in my opinion, is that the reference in section 44(2)(e) to the granting of an interim injunction was not intended either to exclude the Court's general power to act under section 37 of the 1981 Act in circumstances outside the scope of section 44 of the 1996 Act or to duplicate part of the general power contained in section 37 of the 1981 Act. Where an injunction is sought to restrain foreign proceedings in breach of an arbitration agreement - whether on an interim or a final basis and whether at a time when arbitral proceedings are or are not on foot or proposed - the source of the power to grant such an injunction is to be found not in section 44 of the 1996 Act, but in section 37 of the 1981 Act. Such an injunction is not "for the purposes of and in relation to arbitral proceedings", but for the purposes of and in relation to the negative promise contained in the arbitration agreement not to bring foreign proceedings, which applies and is enforceable regardless of whether or not arbitral proceedings are on foot or proposed. Colman J in Sokana Industries Inc v Freyre & Co Inc [1994] 2 Lloyd's Rep 57 was correct on this point when he held that the court's power to make orders "for the purpose of and in relation to a reference" in section 12(6) of the Arbitration Act 1950 did not include the granting of relief consisting of either a final or an interim injunction to restrain an alleged breach of a London Chamber of Commerce arbitration agreement consisting in the commencement of proceedings in Florida.” (Mr Dunning’s emphasis)[61]These are authoritative, albeit obiter, views but they are largely inapplicable to the current issue and not dispositive of it. The Court was there concerned solely with the negative right not to be subjected to foreign proceedings which is contained in the umbrella arbitration agreement. By contrast, the right being enforced by s. 42 of the Act is a different obligation. It is the positive obligation to comply with particular orders made by a tribunal under the reference contract. As I have said, the wording of sections 40 to 42 makes clear that the statutory power for the court to give effect to that positive obligation(a) is not qualified by it having to be for the proper and necessary conduct of the arbitration, but(b) in any event is for that purpose because compliance with tribunal orders is for that purpose. What Lord Mance JSC said about the powers under s. 44 in relation to the negative obligation in the umbrella arbitration agreement is consistent with that construction and casts no doubt upon it.[62]What was said is only of potential relevance to my third, alternative, reason for dismissing the appeal, namely that in any event anti-suit relief can be for the purposes of the proper and expeditious conduct of the arbitration, even if that issue is at large rather than necessarily determined because compliance with an order of the tribunal is always for that purpose. As to that, it does not seem to me that the Court can have had in mind anti-anti-arbitration relief. The language of Lord Mance JSC, and the facts of that case make clear that it was only parallel proceedings relief which was under consideration. The focus was simply on the negative obligation not to pursue the claim for substantive relief in foreign proceedings.[63]As to whether parallel proceedings relief can ever be for the proper and expeditious conduct of the arbitration, I recognise that the italicised sentence suggests that it cannot be said that a parallel proceedings injunction is "for the purposes of and in relation to arbitral proceedings” where they are on foot; and that that rubric is at least as wide as “for the proper and expeditious conduct of the arbitration”. However the Court did not have before it a case where the financial effect of conducting them would prevent or hinder the claimant from pursuing its claim in arbitration (indeed there was no actual or intended arbitration in that case); nor a case where it would impede enforcement of an award; and I doubt whether by this obiter passing remark Lord Mance JSC intended to rule out the jurisdiction under s. 44 to grant anti-suit relief in such cases. If he did, I would respectfully disagree.

The DAC Report

[64]That construction is also consistent with, and indeed supported by, paragraph 212 of the DAC Report. If s. 42 is to “assist the proper functioning of the arbitral process” it must be interpreted so as to allow the court to enforce the obligation of the parties to comply with orders of their chosen tribunal which they have agreed the tribunal has power to make; and to enforce orders to restrain conduct which does or may interfere with the proper conduct of the arbitration.

Conclusion

[65]It was for these reasons, which are for the most part those of the Judge, that I concurred in the decision that the appeal should be dismissed. Accordingly, like the Judge, I do not find it necessary to express any view whether the same or similar relief should be granted in the exercise of a jurisdiction under s. 37 SCA.[66]I joined in the decision to dismiss the appeal for the reasons given by Popplewell LJ.[67]I also joined in the decision to dismiss the appeal, for the reasons given by Popplewell LJ.

Cited in 1 later judgment