UK Law and Practice Contributed by: Roger Gherson, Emma Anderson, Cong Gao, Elizaveta Rachkova and Galiya Mustafina, Gherson Solicitors LLP
arbitration approach to construing arbitration clauses established in Fiona Trust & Holding Corp v Privalov [2007] UKHL 40 (also reported as Premium Nafta Products Ltd v Fili Shipping Co Ltd ). Courts therefore show marked reluctance to permit proceedings com - menced in breach of an arbitration agreement to con - tinue, treating a stay under Section 9 (4) as mandatory rather than discretionary once the statutory conditions are met. 5.6 Jurisdiction Over Third Parties English law does not recognise the “group of compa - nies doctrine”, meaning that a non-signatory group company cannot be bound merely by corporate affili - ation with a signatory, as confirmed in Peterson Farms Inc v C & M Farming Ltd [2004] EWHC 121 (Comm), where the Commercial Court held that “English law treats the issue as one subject to the chosen proper law of the Agreement and that excludes the doctrine which forms no part of English law”. This was rein - forced in City of London v Sancheti [2008] EWCA Civ 1283, where the Court of Appeal held that it “would be wholly inconsistent with the purpose and structure of the Arbitration Act 1996” to stay proceedings against a party who is not a signatory to the arbitration agree - ment or a person claiming through or under such a party, and that “a mere legal or commercial connec - tion was insufficient”. Agency is one basis on which a non-signatory could in principle become bound, as considered (though rejected on the facts) in Peterson Farms , since Eng - lish law determines the question by reference to the proper law of the arbitration agreement rather than the third party’s nationality or domicile. As confirmed in Peterson Farms , and as illustrated by City of London v Sancheti itself (which concerned a party of Indian nationality), these principles apply irrespective of whether the third party is domestic or foreign.
powers (unless otherwise agreed) to order a claim - ant to provide security for the costs of the arbitration (Section 38 (3)), and to order the inspection, photo - graphing, preservation, custody or detention of prop - erty, or that samples, observations or experiments be conducted upon it (Section 38 (4)). Such orders are binding on the parties. Additionally, under Section 39 (1), the parties may agree to confer on the tribunal the power to make, on a provisional basis, “any relief it would be empowered to award in a final decision”. Where so conferred, a provisional award qualifies as an “award for the purposes of the 1996 Act” and is subject to the same challenge mechanisms under Sections 67–69, as confirmed in EGF v HVF and oth- ers [2022] EWHC 2470 (Comm), though the availability and binding effect of such relief depend on the terms of the parties’ agreement, including any adopted insti - tutional rules. 6.2 Role of Courts Section 44 (2) empowers the court to make orders on matters including the taking and preservation of evi - dence, orders relating to property or the sale of goods, the granting of interim injunctions and the appoint - ment of a receiver, while Section 44 (3) permits urgent, without-notice orders to preserve evidence or assets. Section 2 (3) extends these Section 44 powers to foreign-seated arbitrations, subject to the court’s dis - cretion to refuse if it considers exercising the power would be inappropriate given the foreign seat. National legislation does allow emergency arbitra - tors: the Arbitration Act 2025 inserts a new Section 41A into the 1996 Act, expressly empowering an emergency arbitrator to issue a binding peremptory order (enforceable by the court in the same way as an order of a fully constituted tribunal) where a par - ty fails, without sufficient cause, to comply with the emergency arbitrator’s order or directions. Section 44 (4), as amended, also allows the emergency arbitrator to give permission for a party to apply to the court for a Section 44 order. The courts retain their supportive role once an emer - gency arbitrator is appointed, since Section 44 (5) pro - vides that the court will act only where the emergency
6. Preliminary and Interim Relief 6.1 Types of Relief
An arbitral tribunal seated in England and Wales is permitted to award preliminary and interim relief under two distinct statutory provisions. Under Section 38 of the Arbitration Act 1996, the tribunal has default
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