Anti-suit kit bag: Peremptory orders provide newly tested means of obtaining relief from English courts
10 min read
In what is believed to be a first for the English Courts, the Court of Appeal in LLC Eurochem North-West-2 v Tecnimont SpA and MT Russia LLC [2026] EWCA Civ 5 ("NW2 v Tecnimont") this month upheld a court order under Section 42 of the Arbitration Act 1996 (the "Act") in support of an arbitral tribunal's peremptory order for anti-suit relief. A peremptory order is a final order of the tribunal, following a prior order in the same terms with which a party has not complied, with a time prescribed for compliance.
The NW2 v Tecnimont decision offers a novel use of the arguably underused provision in Section 42 to enforce a peremptory order from a tribunal seated in England for injunctive relief against the continuation of proceedings in foreign courts brought in breach of an underlying arbitration agreement. This alternative avenue to obtaining anti-suit relief will give rise to strategic decisions, including how a party may best benefit from the court's coercive powers, if necessary. It is also a timely reminder of the toolkit available under Section 42 to enforce a tribunal's orders.
Anti-Suit Relief to Combat the Lugovoi Law
The Court of Appeal decision in NW2 v Tecnimont arises in the context of the recent spate of English court decisions granting anti-suit relief involving Russian parties.1 In particular, certain amendments to the Russian Arbitrazh Procedure Code in 2020 have provided Russian arbitrazh courts with exclusive jurisdiction over disputes involving sanctioned persons or arising from sanctions,2 and empowered the Russian arbitrazh courts to issue injunctions to restrain foreign arbitration proceedings that they determine to be within their exclusive jurisdiction.3 These legislative changes, commonly known as the Lugovoi law, and subsequent decisions of the Russian Supreme Court, have prompted Russian parties to use the Russian courts in an attempt to disrupt foreign proceedings, including London-seated arbitrations.
In response, claimants have approached the English Courts to restrain Russian court proceedings brought in breach of an agreement to arbitrate (as well as other choice of forum agreements). These applicants have generally applied under the established route of Section 37 of the Senior Courts Act 1981, which provides that the English Courts may "by order (whether interlocutory or final) grant an injunction…in which it appears to the court to be just and convenient to do so". The Courts are thus able to intervene in arbitration proceedings to enforce a valid arbitration agreement, by way of an order that restrains the commencement or continuation of foreign proceedings brought in breach of that agreement.4 The Court of Appeal's decision in NW2 v Tecnimont offers an alternate means of obtaining such relief, by way of an order from the English Courts under Section 42 of the Arbitration Act to enforce a peremptory order from the arbitral tribunal itself for compliance with an anti-suit injunction.
Peremptory Orders
London-seated tribunals have broad powers under Section 40 of the Act to make orders that may be "necessary for the proper and expeditious conduct" of the arbitration. Under Section 41(5) of the Act, tribunals may (unless the power has been excluded by the agreement of the parties) then make peremptory orders to compel compliance – defined in the Act as an order of the tribunal, following a prior order in the same terms with which a party has not complied, with a time prescribed for compliance. They are usually given to a party as a final notice to comply, failing which, Section 41(6) and (7) of the Act entitles the tribunal to make certain penal orders, such as to dismiss the claim for the failure to provide security for costs, draw such adverse inferences from the act of non-compliance as the circumstances justify it, or proceed to an award on the basis of such materials as have been provided to it.
The enforcement powers of the tribunal in relation to a breach of a peremptory order nevertheless remain limited. So, the Act entitles a party to apply to the English Courts to give effect to such peremptory orders and to take the benefit of the Court's coercive powers against a recalcitrant opponent. In particular, a party may apply under Section 42 of the Act for a Court order requiring a party to comply with a peremptory order, provided that: (i) the applicant has exhausted any available arbitral process in respect of failure to comply with the tribunal's order; and (ii) the person to whom the peremptory order was directed has failed to comply with it within the time prescribed in the order. Unlike the arbitral tribunal, the court may give its order 'teeth' by ordering that a party in breach of its order will be in contempt of court if it does not comply and so face imprisonment or seizure of its assets.
While Section 42 has been applied to enforce peremptory orders of the tribunal relating to compliance with procedural orders5 or costs,6 the jurisprudence on the use of Section 42 is limited. Moreover, there is no recorded case prior to NW2 v Tecnimont where Section 42 has been applied to enforce a peremptory order made by a tribunal to restrain foreign proceedings brought in breach of an arbitration agreement.
NW2 v Tecnimont
Background
Tecnimont SpA ("Tecnimont") had been engaged by LLC Eurochem North-West-2 ("NW2") to build a urea and ammonia fertiliser plant in June 2020.7 In May 2022, Tecnimont suspended the contracts to comply with the EU's economic sanctions regime, on the basis that NW2 was a Russian entity owned and controlled by a sanctioned individual (which NW2 disputed). In August 2022, Tecnimont brought arbitration proceedings against NW2 in connection with the contracts, pursuant to the underlying arbitration clause.
NW2 had initially participated in the London-seated ICC arbitration, but between August and October 2025 commenced multiple actions in the Russian courts against Tecnimont and took steps before the Russian courts to restrain Tecnimont from continuing the arbitration. The arbitral tribunal subsequently made peremptory orders against NW2 in relation to prior orders it had issued to restrain the Russian proceedings.8 NW2 failed to comply with the tribunal's orders.
Against this background, Tecnimont applied to the English Courts (with the permission of the Tribunal)9 under Section 42 to secure NW2's compliance with the peremptory orders for anti-suit relief that had been granted by the tribunal.
At first instance, the High Court (Butcher J) granted relief in the terms sought by Tecnimont.10 Butcher J reasoned that:
- Tribunals have the jurisdiction and power under Section 41(5) of the Act to issue peremptory orders in relation to anti-suit relief, to restrain breaches of an arbitration agreement, which is not limited to orders relating to a party's failure to do something necessary for the proper and expeditious conduct of the arbitration;
- In any event, compliance with an order for anti-suit relief is to be treated as necessary for the proper and expeditious conduct of the arbitration under Section 40(2) of the Act;
- Section 37 of the Senior Courts Act is not the only avenue for obtaining anti-suit relief, and Tecnimont was entitled to apply under Section 42 to seek the Court's assistance to give effect to a positive obligation to comply with an order from the tribunal;
- Applying Teare J's guidance in Emmott v Michael Wilson & Partners Ltd (No 2) [2009] EWHC 1 (Comm) on the exercise of the court's discretion under Section 42, Butcher J held that no discretionary factors outweighed supporting the arbitration through the enforcement of the peremptory orders.11
NW2 appealed the High Court's decision on the basis that the two forms of anti-suit relief contained in the tribunal's order (i.e., (i) parallel proceedings relief, to prevent parallel proceedings from being pursued in the non-contractual forum; and (ii) anti-arbitration relief, to prevent proceedings in the non-contractual forum to restrain or impede the pursuit of the existing arbitration reference) were outside the scope of peremptory orders enforceable under Section 42 of the Act.
Court of Appeal Decision
The Court of Appeal (Popplewell, Philipps and May LJ) unanimously dismissed NW2's appeal, upheld the reasoning in Butcher J's decision and confirmed that London-seated tribunals have the power to issue peremptory orders in relation to anti-suit relief, and that English Courts are entitled to enforce such peremptory orders under Section 42 of the Arbitration Act. The following points in the Court of Appeal's decision are of note.
First, the Court of Appeal affirmed that the tribunal's jurisdiction to make peremptory orders under Section 41(5) of the Act was not qualified or restricted in any way – it allows a peremptory order to be made for any failure to comply with any orders or directions from the tribunal, whether or not necessary for the proper and expeditious conduct of the arbitration.12
Second, the Court of Appeal held that compliance with the non-peremptory orders for anti-suit relief fell within the scope of what was "necessary for the proper and expeditious conduct of the arbitration", because (i) compliance with any order of the tribunal acting within its powers is necessary for the proper and expeditious conduct of the arbitration, as s. 40(2)(a) of the Act makes clear; and (ii) in any event, anti-suit relief of the kind granted in this case is capable of being necessary for the proper and expeditious conduct of the arbitration (and, in the case of relief against anti-arbitration proceedings, was obviously so).13
Third, the Court of Appeal confirmed its clear statutory power under Section 42 of the Act to give effect to a positive obligation to comply with peremptory orders from a tribunal for anti-suit relief.14
In short, the Court of Appeal was of the firm view that it "is obviously conducive to the proper conduct of the reference that a party should not be free simply to thumb its nose at an order made against it by the tribunal."15
Comment
The Court of Appeal's decision in NW2 v Tecnimont is a timely reminder of the (arguably underused) procedural tool available under Section 42 of the Arbitration Act 1996 to support ongoing arbitration proceedings in England. It also paves the way for an alternative means of obtaining anti-suit relief from the English Courts. The decision in NW2 v Tecnimont will henceforth inform a party's strategy as to whether it wishes to seek an anti-suit directly from the English Courts or from the sitting tribunal in the first instance. The preferred route adopted in each instance will depend on various considerations, including the likelihood of being able to obtain anti-suit relief in the ongoing arbitration, compared to before the English Courts under the traditional s. 37 of the Senior Courts' Act route. In this regard, the Court of Appeal decision confirms that there will be limited room for the English Court to exercise its discretion and/or reopen the merits of an existing injunctive order of the tribunal when considering an application under Section 42 of the Arbitration Act. This provision accordingly provides parties with the option of obtaining anti-suit relief from the tribunal first, and then seeking the court's enforcement of the same, rather than having to persuade the court to intervene in the proceedings in the first instance (which it may be less willing to do).
*This article has been drafted with the assistance of Jessica McDonald (trainee in the International Arbitration Team, based in London).
1 See, for example: Deutsche Bank AG v RusChemAlliance LLC [2023] EWCA Civ 1144 and UniCredit Bank GmbH v RusChemAlliance LLC [2024] UKSC 30.
2 Article 248.1 of the Russian Arbitrazh Procedure Code.
3 Article 248.2 of the Russian Arbitrazh Procedure Code.
4 AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] UKSC 35.
5 See for example: RQP v ZYX [2022] EWHC 2949 [24]; Emmott v Michael Wilson & Partners Ltd (No 2) [2009] EWHC 1 (Comm) [1] [18] [80].
6 See for example: S3D Interactive, Inc v Oovee [2022] EWCA Civ 1665 [14-15].
7 LLC Eurochem North-West-2 v Tecnimont SpA and MT Russia LLC [2026] EWCA Civ 5 (“NW2 v Tecnimont”) [6].
8 NW2 v Tecnimont [10-19].
9 NW2 v Tecnimont [21-23].
10 Tecnimont SpA v LLC Eurochem North-West-2 [2025] EWHC 3151 (Comm) [24] (“Tecnimont v NW2”).
11 Tecnimont v NW2 [35]-[37].
12 NW2 v Tecnimont [47].
13 NW2 v Tecnimont [53-58].
14 NW2 v Tecnimont [38]; Tecnimont v NW2 [59-61]; Emmott v Michael Wilson & Partners Ltd (No 2) [2009] EWHC 1 (Comm) [62].
15 NW2 v Tecnimont [53].
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