Arbitration Act 1996, Merkin and Flannery on the
ARBITRATION PURSUANT TO AN ARBITRATION AGREEMENT : Powers of court in relation to arbitral proceedings
- (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.
- (2) An application for an order under this section may be made –
- (a) by the tribunal (upon notice to the parties),
- (b) by a party to the arbitral proceedings with the permission of the tribunal (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 tribunal’s order.
- (4) No order shall be made under this section unless the court is satisfied that the person to whom the tribunal’s 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.
- (5) The leave of the court is required for any appeal from a decision of the court under this section.
§42.1 Section 42(1): enforcement of peremptory orders
There are limits to what even the most robust and experienced tribunal may do to secure compliance with its orders. On occasion, obedience may only be guaranteed with the assistance of the court.1 For this purpose, section 42(1) permits the enforcement of any peremptory order by the court.2 The obvious corollary of this is that neither (a) non-peremptory orders, nor (b) the obligation under section 40(1) ‘to do all things necessary for the proper … conduct of the arbitral proceedings’, may be enforced under this section, unless and until converted into a peremptory order. Subject to contrary agreement, arbitrators are free to convert any of their decisions, directions or orders into peremptory orders by exercising their powers under section 41(5), thereby bringing section 42 into play. The section is not mandatory, and the parties are free to contract out of resort to the courts in this fashion, although in practice they rarely do. But if they do give permission to one party to enforce a peremptory order under section 42 made against another, it can spell trouble for the party at the receiving end of the court’s wrath, in the form of fines and imprisonment for contempt if the court’s order is not obeyed.
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