Section 42 Arbitration Act 1996 Extends to Enforcement of Peremptory Tribunal Anti-Suit Orders

1. Introduction

LLC Eurochem North-West-2 v Tecnimont SPA & Anor concerned a focused but practically significant issue of statutory construction: whether the English court may, under s. 42 of the Arbitration Act 1996, enforce a peremptory order of an arbitral tribunal granting anti-suit relief.

The appellant, LLC Eurochem North-West-2 (NW2), a Russian company, resisted enforcement of ICC tribunal peremptory orders requiring it to withdraw (i) Russian substantive proceedings duplicating claims/counterclaims being arbitrated in London and (ii) Russian anti-arbitration proceedings seeking to restrain the London arbitration, and to undo interim measures obtained from the Moscow court. The respondents, Tecnimont SPA (Italian) and MT Russia (Russian), were claimants in a London-seated ICC arbitration arising from EPC contracts.

The Commercial Court (Butcher J) enforced the tribunal’s peremptory orders under s. 42. NW2 appealed on the sole point that anti-suit relief is “external” to arbitral proceedings and therefore cannot be enforced via s. 42, but only (if at all) under s. 37 of the Senior Courts Act 1981 or by enforcing a final award under s. 66 of the 1996 Act. The Court of Appeal dismissed the appeal.

2. Summary of the Judgment

The Court of Appeal held that:

• s. 41(5) is not limited to peremptory orders addressing only matters “necessary for the proper and expeditious conduct of the arbitration”; its wording (“any order or directions”) is wide.
• s. 40(2)(a) makes compliance with tribunal orders part of the parties’ general duty to do what is necessary for the proper and expeditious conduct of the arbitral proceedings; therefore, enforcing compliance can fall within the statutory scheme.
• In any event, anti-suit relief can be “necessary” for the proper and expeditious conduct of the arbitration, especially where it counters foreign anti-arbitration steps or parallel proceedings that disrupt the arbitration or imperil effective enforcement.
• AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] UKSC 35 [2013] 1 WLR 1889 did not preclude s. 42 enforcement: AES addressed the source of the court’s power to grant an anti-suit injunction (s. 37 SCA) in the context of s. 44, not the court’s power to enforce tribunal-ordered compliance via s. 42.

The appeal was dismissed; the Court did not need to decide whether the same relief should (alternatively) be granted under s. 37 SCA.

3. Analysis

3.1 Precedents Cited

(a) Pearl Petroleum Company Ltd v Kurdistan Regional Government of Iraq [2015] EWHC 3361 (Comm) ('Pearl Petroleum')

The court treated Pearl Petroleum as supporting the proposition that, once a tribunal makes an order within its powers, compliance is to be treated as necessary for the proper and expeditious conduct of the arbitration, engaging the s. 40–s. 42 enforcement ladder. Although Pearl Petroleum concerned an interim payment order rather than anti-suit relief, it was used for its structural reading of s. 40(2)(a) and the supportive role of the court under s. 42.

(b) AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] UKSC 35 [2013] 1 WLR 1889 ('AES')

NW2 relied on Lord Mance JSC’s observation (at [48]) that an injunction restraining foreign proceedings in breach of an arbitration agreement derives from s. 37 SCA, not s. 44 of the 1996 Act. The Court of Appeal distinguished AES:

• AES concerned whether the court could grant anti-suit relief even when arbitral proceedings were not on foot or intended.
• The key conceptual divide in this appeal was between enforcing the negative covenant in the “umbrella” arbitration agreement (AES territory) and enforcing the positive obligation to comply with tribunal orders within a reference (s. 42 territory).

Thus AES did not limit s. 42. At most, AES discussed whether anti-suit relief is “for the purposes of and in relation to arbitral proceedings” for s. 44—an issue the Court of Appeal considered not determinative of, and materially different from, s. 42 enforcement of peremptory orders.

(c) Black Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1981] 2 Lloyd's Rep 446

NW2 invoked Black Clawson to support a distinction between:

• the “umbrella” arbitration agreement (pre-dispute agreement to arbitrate); and
• the “reference” agreement(s) (contractual framework arising once a dispute is referred to arbitration).

The Court of Appeal accepted the analytical distinction but treated it as insufficient to confine s. 42: the statutory scheme (ss. 40–42) is directed at compliance with tribunal directions/orders made within the reference, and it is that positive compliance obligation that s. 42 reinforces.

(d) Sokana Industries Inc v Freyre & Co Inc [1994] 2 Lloyd's Rep 57

Mentioned in the AES passage, Sokana Industries Inc v Freyre & Co Inc was part of the historical thread that anti-suit relief was not viewed as falling within older statutory “in relation to a reference” powers. The Court of Appeal treated this as not controlling the modern s. 42 question, because s. 42 is expressly about enforcement of tribunal peremptory orders, not the court’s freestanding power to grant anti-suit relief.

(e) Interpretation authorities: R (O) v Secretary of State for the Home Department [2022] UKSC 3 [2023] AC 255; Potter v Canada Square Operations Ltd [2023] UKSC 41 [2023] 3 WLR 963

These cases supplied the modern approach to statutory interpretation: objective meaning derived from text read in context (section, group of sections, and the statute as a whole), with words being the primary source of meaning.

(f) Other cited authorities: Open Spaces Society v Secretary of State for the Environment, Food and Rural Affairs [2021] EWCA Civ 241; R (Jackson) v Attorney General [2005] UKHL 56 [2006] 1 AC 262

Open Spaces Society was cited for when legislative amendments may assist interpretation if the unamended text is ambiguous. The Court then used the 2025 insertion of s. 41A (emergency arbitrators) to confirm the coherence of its reading of s. 41(5) and s. 42. R (Jackson) was relied upon for the breadth of the term “any”.

3.2 Legal Reasoning

(a) The “three-stage” mechanism and why it matters

The judgment emphasised ss. 40–42 as a structured mechanism:

1. a non-peremptory tribunal order/direction;
2. a peremptory order “to the same effect” under s. 41(5) (or s. 41A(2));
3. court enforcement under s. 42.

NW2’s submission would have carved out anti-suit orders from this support structure, despite the tribunal having power (under ICC Rules) to grant them and despite their being issued as peremptory orders.

(b) s. 41(5): “any order or directions” means what it says

NW2 argued that s. 41(1) (“failure to do something necessary for the proper and expeditious conduct of the arbitration”) indirectly qualified s. 41(5), so that peremptory orders could only be made for failures within that narrow category. The Court rejected this as an impermissible textual graft: s. 41(5) is unqualified and uses the language of breadth (“any”).

Critically, the Court treated s. 41(1) as permissive/confirmatory (reflecting party autonomy), not as a substantive limitation on the default peremptory-order power in s. 41(5).

(c) The decisive confirmatory role of s. 41A (Emergency arbitrators)

Parliament inserted s. 41A via the Arbitration Act 2025. Section 41A(2) empowers an emergency arbitrator to make peremptory orders in materially identical terms to s. 41(5) but without any equivalent to s. 41(1)’s “necessary for the proper and expeditious conduct” wording. NW2 accepted s. 41A(2) could not be read as subject to such a limitation.

The Court held it would be commercially absurd if an emergency arbitrator could make a peremptory anti-suit order enforceable by the court, but a tribunal constituted shortly thereafter could not. This supported a uniform reading: s. 41(5) is not narrowed by s. 41(1).

(d) s. 40(2)(a): compliance with tribunal orders is itself “necessary”

The Court accepted the “structural” point: s. 40(2)(a) explicitly includes “complying without delay with any … order or directions of the tribunal” as part of the duty to do all things necessary for the proper and expeditious conduct of the proceedings. This underpinned two conclusions:

• the statutory scheme treats compliance with valid tribunal orders as inherently connected to proper and expeditious conduct; and
• therefore, enforcing peremptory orders (including anti-suit ones) via s. 42 fits the legislative design of judicial support for arbitration.

(e) Anti-suit relief can, in substance, be “necessary” for the arbitration

Even if the “compliance is always necessary” proposition were not enough, the Court held that the content of these orders could itself meet the “necessary” concept:

• Anti-anti-arbitration relief (stopping foreign proceedings that restrain the arbitration) goes directly to whether the arbitration can proceed.
• Parallel proceedings relief may be necessary where foreign proceedings drain resources, distract parties, or create practical impediments to the arbitration and/or to enforcement of any award.

The Court stressed it was deciding a point of law about capability: anti-suit relief is not, as a matter of law, inherently “external” to arbitral proceedings.

(f) Reconciling s. 42 with AES (and with s. 37 SCA)

The judgment draws a clean functional distinction:

• s. 37 SCA is the source of the court’s freestanding power to grant anti-suit injunctions to enforce the negative promise in the umbrella arbitration agreement.
• s. 42 of the 1996 Act is the source of the court’s power to enforce the positive obligation to comply with tribunal orders (once peremptory), a different juridical basis.

On this view, AES does not “reserve” anti-suit relief exclusively to s. 37; it addresses the source of the court’s original injunctive jurisdiction, not the enforcement of tribunal peremptory orders within the arbitral supervisory framework.

3.3 Impact

• Strengthened enforceability of tribunal interim measures: Parties who obtain tribunal-ordered anti-suit relief (including anti-anti-arbitration relief) can seek to convert it into a peremptory order and then obtain court enforcement under s. 42, rather than relying solely on s. 37 SCA or waiting for a final award.
• Reduced incentives for “procedural sabotage” via foreign courts: The decision targets the tactic of bringing foreign proceedings (including anti-arbitration injunctions) to derail London-seated arbitrations.
• Coherence after the Arbitration Act 2025 amendments: By giving s. 41(5) and s. 41A(2) consistent scope, the judgment promotes functional parity between emergency arbitrators and tribunals in relation to peremptory orders and their enforceability.
• Practical case-management consequence: Applicants may prefer s. 42 enforcement where the tribunal has already acted and issued peremptory orders, because it aligns with the principle of limited court intervention (s. 1(c))—the court supports, rather than replaces, the tribunal’s supervisory control of the proceedings.

4. Complex Concepts Simplified

• Anti-suit injunction: an order restraining a party from starting or continuing proceedings in another court (here, Russian courts) in breach of an arbitration agreement.
• Anti-anti-arbitration relief: anti-suit relief directed specifically at stopping foreign proceedings that seek to restrain or sabotage the arbitration itself.
• Peremptory order (s. 41(5)): a “final warning” order made after non-compliance with a prior tribunal order; it sets a deadline and triggers the possibility of court enforcement under s. 42.
• Umbrella arbitration agreement vs reference agreement(s): the umbrella agreement is the parties’ original promise to arbitrate; the reference agreement concerns the procedural/jurisdictional framework once a dispute is actually referred to arbitration. The Court treated s. 42 as enforcing compliance obligations arising within the reference framework.
• s. 37 SCA vs s. 42 Arbitration Act 1996: s. 37 is the court’s general injunctive power (including freestanding anti-suit injunctions). s. 42 is a targeted power to compel compliance with tribunal peremptory orders.

5. Conclusion

The Court of Appeal confirms a robust pro-arbitration principle: peremptory tribunal orders granting anti-suit relief are enforceable by the court under s. 42 of the Arbitration Act 1996. It rejects an “internal/external” carve-out that would have denied s. 42 support to a key category of interim measures increasingly needed in cross-border disputes.

The decision consolidates the statutory support structure (ss. 40–42), aligns it with the post-2025 emergency arbitrator regime (s. 41A), and confines AES to its proper domain: the source of the court’s freestanding anti-suit jurisdiction, not the enforcement of tribunal-ordered compliance within a London-seated arbitration.