Introduction
In this final article in our series on the Act, we explore two key updates introduced by the Act: (1) the expansion of English courts’ powers to issue orders against third parties to arbitration, including the clarification of third parties’ rights to appeal such orders; and (2) the enforcement of peremptory orders issued by emergency arbitrators. These welcome changes enhance legal certainty in arbitration and reinforce the supportive role of English courts.
The final provisions closely align with the Law Commission’s initial proposals, with no significant departures from the earlier recommendations.
Court orders against third parties
Section 44 of the Arbitration Act 1996 governs the courts’ powers to grant interim measures in support of arbitration.
Under section 44, an arbitral tribunal seated in England has the same power as the English courts to make orders regarding: (a) the taking of the evidence of witnesses; (b) the preservation of evidence; (c) the inspection, photographing, preservation, custody or detention of property related to the arbitration, or the taking of samples from, observation of or experiment on such property; (d) the sale of any goods the subject of the arbitration; and (e) the granting of an interim injunction or the appointment of a receiver.
The Act now explicitly confirms that orders under section 44 may be made “whether in relation to a party or any other person [emphasis added]”; that is, an order under section 44 can be made with respect to third parties to an arbitration. This addresses prior ambiguity and inconsistencies in case law.
This clarification strengthens the courts’ role in assisting arbitration while preserving procedural protections available to third parties. However, while this amendment resolves uncertainty, the application of section 44 to third parties remains subject to complicated case law concerning the application of the measures set out in section 44, and its exact application to each specific case will depend on the specific requirements for each individual measure.
Even with that caveat, the proposed clarification is a positive step, offering enhanced support for the arbitral process and bolstering the protection of crucial elements such as evidence.
Third-party rights of appeal
The explicit extension of section 44 to third parties raises an important question: What rights do third parties have to appeal such orders?
Previously, under section 44(7) of the Arbitration Act 1996, the right of appeal was only available through the court that issued the order. The Act now clarifies that this restriction applies only to parties to the arbitration, whereas third parties may appeal not only to the court that issued the order but also to the court to which the appeal is made.
This distinction reflects a fundamental difference between parties to an arbitration agreement – who have voluntarily agreed to arbitration – and third parties, who have not. The Act ensures that third parties retain their full rights of appeal, with the aim of maintaining a fair balance between arbitration autonomy and third-party rights.
Emergency arbitration
Prior to the Act, the Arbitration Act 1996 did not explicitly address emergency arbitration, despite its widespread adoption in institutional arbitration rules, the UNCITRAL Model Law and the laws of multiple jurisdictions. The Act now introduces specific provisions regarding emergency arbitrators and the enforcement of their orders.
The Act expressly refers to emergency arbitrators and provides that where the parties have agreed to the application of arbitral rules that allow the appointment of an emergency arbitrator, the emergency arbitrator has the power to make a peremptory order, which is enforceable by the court, where a party fails to comply with the emergency arbitrator’s order (unless the parties have agreed otherwise).
As discussed above, section 44 of the Arbitration Act 1996 governs the courts’ powers to grant interim measures in arbitration. The Act now explicitly extends these provisions to emergency arbitrators, ensuring clarity on their ability to seek court assistance and enforce peremptory orders.
Section 44(4) provides that if the case is not one of urgency, the court shall act only on the application of a party to the arbitral proceedings (upon notice to the other parties and to the tribunal) made with the permission of the tribunal or the agreement in writing of the other parties. Section 44(5) provides that courts should only intervene when the arbitral tribunal cannot do so effectively. The Act now makes it clear that sections 44(4) and (5) extend to emergency arbitrators.
Finally, under the new section 41A introduced by the Act, if a party fails to comply with an order or direction of an emergency arbitrator without sufficient cause, the emergency arbitrator may issue a peremptory order prescribing a timeframe for compliance. The Act further confirms that courts can enforce such orders in the same manner as orders from an ordinary (that is, non-emergency) tribunal, eliminating previous uncertainty on that point.
Conclusion
The Act introduces meaningful clarifications to the courts’ role in supporting arbitration, particularly regarding third-party involvement and emergency arbitration. While these reforms bring welcome clarity, their practical application will depend on the facts of each case and the evolving judicial interpretation of section 44.
By providing greater certainty on these issues, the Act strengthens London’s position as a leading centre for international arbitration, ensuring that its legal framework remains fit for modern international disputes.
This alert is part 6 in a 6 part series, please use the links below to read the rest of the series.
Client Alert 2025-089
