Lloyd's Maritime and Commercial Law Quarterly
THE ARBITRATION ACT 1996, S.44: INTERIM ASSISTANCE FROM THE COURT
Daniel Ward *
Under the Arbitration Act 1996, s.44, the court may issue interim orders in support of arbitral proceedings. This article identifies—and suggests means of resolving—three issues thrown up by this provision with which the courts have struggled. First, how does the s.44 jurisdiction relate to the general jurisdiction to grant injunctive relief pursuant to the Senior Courts Act 1981, s.37? Second, what is required to contract out of it? Third, where the conditions in s.44 are met, how should the discretion be exercised? In particular, where the claimant seeks to enforce disputed substantive rights, is the court to apply the general principles of interim injunction decision-making or does a different standard apply?
I. INTRODUCTION
Parties who have agreed to arbitration can be presumed to have the following two objectives: (1) achieving a fair, effective determination of their rights before a tribunal of their choice, and (2) preventing proceedings in any other forum. Those presumed goals are reflected in s.1 of the Arbitration Act 1996 (“AA 1996”). This states that the court should, in construing the Act,1 observe—alongside the fundamental precept that “parties should be free to agree how their disputes are resolved” (s.1(b))—the principles that, on the one hand, “the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense” (s.1(a)) and that, on the other, “in matters governed by this Part the court should not intervene except as provided by this Part” (s.1(c)). Similarly, in AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC,2 Lord Mance observed that arbitration agreements have “positive and negative aspects”: the parties undertake positively to resolve disputes in arbitration, with “[t]he (often silent) concomitant … that neither party will seek relief in any other forum”.
Often these two objectives will gravitate in the same direction. But, where a party requests relief from the court in support of a pending or proposed arbitration, they may pull apart. The court’s intervention may enhance the prospects of the substantive
* Barrister and PhD candidate, University of Cambridge. I am grateful to Jack Birchenough for his assistance and to an anonymous reviewer for comments on an earlier draft of the article.
1. The section starts, “[t]he provisions of this Part are founded on the following principles, and shall be construed accordingly …”.
2. [2013] UKSC 35; [2013] 2 Lloyd’s Rep 281; [2013] Bus LR 1357, [1].
The Arbitration Act 1996, s.44
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