LLC Eurochem North-West-2 v Tecnimont SPA & Anor

Factual and Procedural Background

Company A (the Appellant) is a Russian company whose immediate parent is Company B and ultimate parent is Company C. Company D and Company E (the Respondents) were contracted by Company A as contractors under three materially identical contracts (all containing London-seated arbitration clauses under the ICC Rules) for construction works at a site in Russia. A three-member tribunal (the Tribunal) was constituted and proceedings under the arbitration agreement were on foot in The City.

The Tribunal made interim anti-suit orders under Article 28 of the ICC Rules directing Company A to desist from pursuing parallel proceedings in a foreign court and from pursuing anti-arbitration injunctions in foreign courts. Company A did not comply. The Tribunal then made peremptory orders under the Act (Procedural Orders PO18, PO22 and PO23) requiring Company A to withdraw specified foreign proceedings and to discharge interim measures obtained in a foreign court; permission was given for an application under section 42 of the Arbitration Act 1996 to enforce those peremptory orders.

The Respondents applied to the Commercial Court under s.42. Judge Butcher granted injunctive relief enforcing the Tribunal's peremptory orders and gave leave to appeal. Company A appealed solely on the question whether, as a matter of law, the court has power under s.42 of the Arbitration Act 1996 to enforce peremptory anti-suit orders made by an arbitral tribunal. Expedition was granted and the Court of Appeal (Judges Popplewell, Phillips and May) dismissed the appeal.

Legal Issues Presented

1. Whether the court has power under section 42 of the Arbitration Act 1996 to make orders enforcing a tribunal's peremptory order granting interim anti-suit relief.
2. If so, whether such relief is confined to orders necessary "for the proper and expeditious conduct of the arbitration", and whether interim anti-suit relief can fall within that requirement.
3. Whether, alternatively, anti-suit relief in these circumstances is exclusively a matter for the court under section 37 of the Senior Courts Act 1981 rather than for enforcement under s.42.

Arguments of the Parties

Appellant's Arguments

• Sections 41 and 42 concern failures affecting the conduct of the arbitral reference; they are limited to orders necessary for the proper and expeditious conduct of that arbitration.
• Anti-suit injunctions enforce a negative covenant in the umbrella arbitration agreement (not an obligation arising from the reference) and thus cannot be enforced under s.42; they fall to be granted, if at all, under s.37 SCA.
• Reading s.41(5) and s.42 to permit enforcement of anti-suit peremptory orders would convert s.40 into a statutory prohibition of foreign proceedings beyond the parties' contractual umbrella covenant.

Respondents' Arguments

• The Tribunal had power under Article 28 of the ICC Rules to make the interim anti-suit orders; compliance with any order of a tribunal acting within its powers is within the duty in s.40(2)(a) and so enforceable under s.42.
• Section 41(5)'s unqualified reference to "any order or directions" permits peremptory orders to be made in respect of tribunal orders, including anti-suit orders; the 2025 amendments (s.41A) support a broad construction.
• Even as a matter of substance, anti-suit relief (both anti-anti-arbitration and parallel proceedings relief) can be necessary for the proper and expeditious conduct of the arbitration in many cases.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook orthodox statutory construction. It analysed the text and scheme of the Arbitration Act 1996, in particular ss.40–42 and the related provisions (ss.1, 38, 41A, 44 and 82). The Court reached these principal conclusions:

• The unqualified language of s.41(5) ("any order or directions") is wide and, absent a clear contrary indication, permits peremptory orders to follow any tribunal order or direction which the tribunal has power to make.
• Section 41(1) is permissive and confirmatory of party autonomy rather than a limiting gloss that narrows s.41(5); the parties are free to confer on the tribunal wide powers and s.38 recognises that freedom.
• Section 41A (inserted in 2025) contains materially identical language in respect of emergency arbitrators but without the "necessary for the proper and expeditious conduct" formulation, supporting a construction that s.41(5) is not so qualified.
• Section 40(2)(a) imposes a duty to comply with "any order or directions of the tribunal"; the Court read this to mean compliance with tribunal orders (acting within their powers) is something necessary for the proper and expeditious conduct of the arbitration.
• Anti-suit relief can be critical to the proper and expeditious conduct of an arbitration: (a) anti-anti-arbitration relief prevents foreign anti-arbitration measures that would halt the reference; (b) parallel-proceedings relief can, in appropriate cases, affect resources, enforceability and expedition of the arbitration.
• AES and related authorities concerned with enforcing the umbrella negative covenant and the separate jurisdiction under s.37 SCA do not displace the court's power under s.42 to enforce a tribunal's peremptory orders that are within the tribunal's powers; AES was distinguished on that basis.
• The Judge's exercise of discretion in granting relief under s.42 was appropriate on the facts and was not overturned on appeal.

Holding and Implications

APPEAL DISMISSED

Direct effect: the Court of Appeal upheld Judge Butcher's enforcement under s.42 of the Tribunal's peremptory anti-suit orders (PO22 and PO23) and dismissed Company A's appeal.

Implications: the Court construed s.42 of the Arbitration Act 1996 to permit the court to make orders enforcing peremptory orders of an arbitral tribunal granting interim anti-suit relief where those tribunal orders are within the tribunal's powers; the Court did not decide whether the same relief should or could alternatively have been granted under s.37 of the Senior Courts Act 1981 in the appellate proceedings.