Anti-arbitration injunctions and the English courts: judicial interference or judicial protection?

Abstract

In the course of arbitral proceedings (whether before or during proceedings) a party may need to seek injunctive relief. The use of injunctive relief in international commercial arbitration is nothing new and must not be seen as incompatible with the underlining principles of commercial arbitration such as party autonomy, separability and kompetenz-kompetenz. Many institutional rules1 and arbitration legislation2 allow parties to apply to an appropriate court for injunctive relief. Indeed, injunctions can be very crucial to the outcome of a claim given that there are situations where the tribunal may not yet be constituted or lacks the power to grant the relief sought. For example, s.44 of the Arbitration Act 1996 (the Act) is seen as a supporting measure by which the courts can assist arbitral proceedings by granting an interim injunction so as to preserve evidence and assets in appropriate situations.3 Hence, arbitral proceedings can be secured by prompt early injunctive relief of the type that can only be granted by the courts.