ENGLAND & WALES Law and Practice Contributed by: James Stacey, Peter Wickham, Samantha Holland and William Humphries, Slaughter and May
arbitration agreements, provided that the court is sat - isfied that it has jurisdiction, such as pursuant to an English law governed arbitration agreement and the English court is the proper forum to grant such relief ( UniCredit Bank v RusChemAlliance [2024] UKSC 30). 5.6 Jurisdiction Over Third Parties English law does not permit a tribunal to assume juris - diction over non-parties ( Kabab-Ji SAL v Kout Food Group [2021] UKSC 48). The tribunal does not have the power to compel a non-party to produce docu - ments, for example, but it may invite non-parties to do so. Parties may seek to bind a non-signatory to the arbi - tration agreement in certain circumstances, such as via the doctrine of agency ( Filatona Trading Ltd v Navi- gator Equities Ltd [2020] EWCA Civ 109). The English courts have emphasised that the group of companies doctrine “forms no part of English law” ( Peterson Farms Inc v C & M Farming Ltd [2004] EWHC 121 (Comm)). Furthermore, the Supreme Court has held that the circumstances in which English law will be willing to pierce the corporate veil are extreme - ly rare ( VTB Capital Plc v Nutritek International Corp [2013] UKSC 5). See also 13.5 Binding of Third Parties . Sections 38–39 of the 1996 Act list a tribunal’s powers to grant preliminary or interim relief. Parties are free to agree on the powers of the tribunal (Section 38 (1)). Subject to contrary agreement, the tribunal has the power to: • order a claimant to provide security for costs in the arbitration (Section 38 (3)); • give directions relating to property that is the sub - ject matter of the proceedings or about which any question arises in the proceedings (Section 38 (4)); • direct a party or witness to be examined (Section 38 (5)); and 6. Preliminary and Interim Relief 6.1 Types of Relief
• give directions for the preservation of evidence (Section 38 (6)). Parties may agree that the tribunal will have the power to order, on a provisional basis, any relief it would have the power to grant in a final award (Section 39). Unless otherwise agreed, the 1996 Act does not confer on the tribunal the power to grant an interim injunction to secure the sum in dispute. However, it is possible to seek a freezing injunction from the English courts in support of arbitral proceedings (Section 44 (2)(e)). 6.2 Role of Courts Unless the parties agree otherwise, the English courts have the power to make orders in respect of: • taking witness evidence; • the preservation of evidence; • the preservation, detention, inspection or sampling of the disputed property; • the sale of any goods the subject of the proceed - ing; and • granting an interim injunction (Section 44 (2)). Where urgent, the court may (on the application of a party or proposed party to arbitral proceedings) make such orders as it thinks necessary to preserve evi - dence or assets (Section 44 (3)). However, if the application is not urgent, the court will only make interim orders with the permission of the tribunal or with the agreement of the parties (Section 44 (4)). The court will only act to the extent that the tribunal has no power or is unable at the time to act effectively (Section 44 (5)). The 2025 Act expands this slightly by including express reference to emergency arbitrators in addition to the tribunal in Sections 44 (4) and (5). Despite some uncertainty in case law, it was generally considered that the English courts could make orders against non-parties under Section 44 – eg, by ordering the taking of evidence from a non-party witness for the purpose of aiding foreign arbitral proceedings ( A & B v C, D & E [2020] EWCA Civ 409). The 2025 Act has now confirmed the position by amending the 1996 Act
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