5 mars 2020
Courts in many jurisdictions are known to be supportive of arbitration. The arbitral process provides a clean and efficient mechanism for resolving commercial disputes, liberating state courts' precious resources. The support which is given not only concerns parties arbitrating in the UK, but also elsewhere. To that end, in England the Arbitration Act 1996 empowers the Court to make orders in support of arbitration generally, powers which include ordering injunctions and the preservation of evidence and assets. The powers are broad, though they are limited by the powers of the tribunal. A court will only act if a tribunal cannot. These are powers which have traditionally been used by parties to obtain freezing injunctions and other interim orders before proceedings have started.
These supportive powers go further. They extend also to the taking of witness evidence. Until recently, many practitioners understood these to be broad powers capable of being invoked against a wide range of parties. However, following the recent decision of the Commercial Court in an anonymised judgment handed down in February this year (AB v CDE), the Court identified unwritten limitations on its powers which may not be seen as entirely arbitration supportive. The question for practitioners and users alike is: does this signal a further shift away from Court interventionism in arbitration?
Disputes and investigation partners Nick Storrs and Donata Freiin von Enzberg have looked at shifts in the attitudes towards intervention in arbitration with Commercial Disputes Resolution.