Comply! Clarification From The English Courts On The Enforcement Of Tribunal's Peremptory Orders

Introduction

In two recent decisions of the High Court and the Court of Appeal, in Tecnimont SpA v LLC Eurochem North‑West‑2 [2025] EWHC 3151 (Comm)and Tecnimont SpA v LLC Eurochem North‑West‑2 [2026] EWCA Civ 5, the English courts have clarified the scope of an arbitral tribunal's power to grant peremptory orders and confirmed that s42 of the Arbitration Act 1996 (the Act), which gives the English courts the power to enforce peremptory orders granted by arbitral tribunals, extends to orders granting interim anti-suit relief. These judgments confirm that such relief is capable of being "necessary for the proper and expeditious conduct of the arbitration proceedings" and thus falls within s42 of the Act.

Background

The dispute arose from contracts under which Tecnimont SpA (Tecnimont) and MT Russia LLC (MTR) – together, the "Contractors" – contracted with Eurochem North‑West‑2 (NW2) to build a urea and ammonia fertiliser plant in Russia. NW2 has been held by the English courts to be owned and controlled by a Russian individual who is a designated person subject to UK and EU economic sanctions.

The Contractors suspended the contracts arguing that performance would breach EU sanctions, while NW2 disputed the suspensions and terminated the contracts. The Contractors initiated a London-seated arbitration and NW2 counterclaimed for over €1 billion.

During the arbitration, NW2 and its parent company commenced several proceedings in the Russian courts in breach of the arbitration agreements, including (i) proceedings to recover the amounts it counterclaimed in the arbitration; (ii) applications for anti-arbitration injunctions; and (iii) ex parte interim measures against the Contractors' assets.

The Contractors, in turn, obtained several orders from the Tribunal seeking to restrain NW2's breaches of the arbitration agreements. NW2 failed to comply with most of the Tribunal's orders. The Tribunal then issued peremptory orders under s41(5) of the Act requiring NW2 (i) to take all necessary steps to stay the Russian proceedings commenced by its parent company; (ii) to withdraw its own Russian litigation; and (iii) to withdraw its applications in the Russian courts seeking anti-arbitration injunctions against the Contractors. The Tribunal also granted the Contractors permission to apply to the English courts to enforce its peremptory orders.

Commercial Court proceedings

The Contractors applied under s42(1) for orders requiring NW2 to comply with the peremptory orders. NW2 opposed the application on three main grounds as outlined below.

Anti-suit relief as final or interim?

NW2 argued that the peremptory orders were not valid because the Tribunal had no jurisdiction to make the non-peremptory orders, which NW2 argued were final rather than interim or conservatory. The Court held, however, that the orders were clearly interim or conservatory under both Article 28.1 of the ICC Rules 2021 and s39(1) of the Act. It was clear that the orders were intended to be interim based on both their wording and the fact that they were expressly stated to be subject to amendment by the Tribunal.

The Court was not persuaded by NW2's argument that compliance with the provisional orders would have permanent effects in the Russian proceedings under Russian procedural rules. It observed that "[A] matter will be an interim order if it is made in advance of the final hearing and, by its terms or its nature, is one which lasts only for the duration of the action or matter until the final hearing and can, if appropriate, be revisited by the tribunal or court making it and does not give rise to a res judicata."

"Necessary for the proper and expeditious conduct of the arbitration"?

NW2 submitted that the anti-suit orders did not satisfy the threshold of being "necessary for the proper and expeditious conduct of the arbitration" as required by s41(1) of the Act. In line with existing authority, the Court found that compliance with any order made by a tribunal is to be treated as meeting this threshold. The Court further found that orders restraining a party from pursuing litigation of its arbitral claims and from pursuing anti-arbitration applications would in any event meet this threshold. The Court also clarified that, contrary to NW2's contention, peremptory orders are not limited to conditional or "unless" orders because, in the ordinary sense, peremptory simply "has the sense of absolute and admitting of no refusal, debate or delay".

NW2 also made a related argument that the application should have been made under s37 of the Senior Courts Act 1981 (SCA), rather than under s42 of the Act, reiterating that s42 was limited to orders necessary for the proper and expeditious conduct of the arbitration. In making this argument, it relied on the Supreme Court's judgment in AES Ust-Kamenogorsk v Ust-Kamenogorsk JSC [2013] UKSC 35, which concerned a freestanding application under s44 to restrain a breach of an arbitration agreement that the Court held should have been brought under s37 of the SCA. However, the Court distinguished that case because here, the Contractors were seeking to enforce a positive obligation for NW2 to comply with the Tribunal's orders, rather than merely a negative obligation not to commence foreign proceedings.

Exercise of discretion

NW2 asserted that Russian law exposed its directors to criminal and civil sanctions if they complied with the orders. However, the Court was not persuaded that there was a "real risk of prosecution" of NW2's directors in Russia. Even if there were such a risk, this would not outweigh the other factors in support of the court's exercise of its discretion. This was especially the case given that the pursuit of foreign proceedings was a breach of English arbitration agreements.

The Court also found that it was not necessary for the English courts to ask whether it would be "just and convenient" to grant anti-suit relief in a s42 application. Instead, the relevant test for the exercise of the Court's discretion is "whether an order is or is not required in the interests of justice to assist the proper functioning of the arbitral process, where those interests include ensuring that parties comply with the orders of the tribunal". The Court determined that the interests of justice required an order in this case.

Court of Appeal proceedings

NW2 appealed the Commercial Court's decision on ground (ii) above – arguing that anti-suit relief is not "necessary for the proper and expeditious conduct of the arbitration". NW2 also repeated its argument that the application should have been brought under s37 of the SCA.

Decision

The Court of Appeal dismissed the appeal. The Court opined that NW2's argument relied on establishing the following two propositions, neither of which could be established.

The first proposition was that a "tribunal has jurisdiction to make a peremptory order under s. 41(5) only if the failure to comply with a non-peremptory order or directions is a failure to do something which is necessary for the proper and expeditious conduct of the arbitration". The argument was that a qualification was imposed on s41(5), indirectly via s41(2), to the effect that it should read "Unless otherwise agreed by the parties [to confer a power on the tribunal in the case of a party's failure to do something necessary for the proper and expeditious conduct of the arbitration]".

The Court rejected this attempt to read s41(1) as qualifying s41(5), determining that s41(5) allows a peremptory order to be made for any failure to comply with an order or directions of the tribunal, whether or not necessary for the proper and expeditious conduct of the arbitration, subject only to the possible qualification that the order or directions must be ones which the tribunal had power to make. This interpretation was confirmed by the changes made when enacting the Arbitration Act 2025 to refer to orders by emergency arbitrators, which clearly proceeded on the understanding that s41(5) was not qualified by s41(1).

The second proposition was that "compliance with orders or directions granting anti-suit relief are not capable of being something necessary for the proper and expeditious conduct of the arbitration." The Court, however, was unequivocal that, as s40(2)(a) makes clear, compliance with an order of a tribunal acting within its powers always satisfies this threshold. The Court commented that "[I]t 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. That imperative extends to all orders properly made against a party, without exception".

Finally, the Court also held that anti-suit relief was "obviously" capable of being "necessary for the proper and expeditious conduct of arbitral proceedings". It examined both anti-anti-arbitration relief and relief against parallel proceedings and commented that it would treat the "conduct" of the arbitration as including matters going to the enforceability of the award. The Court of Appeal also affirmed the Commercial Court's finding that the AES Ust-Kamenogorsk case was distinguishable from this case. Whereas that case concerned solely a negative right not to be subjected to foreign proceedings, the right being enforced under s42 of the Act is a positive obligation to comply with orders made by a tribunal.

Comment

Although NW2 has indicated an intention to appeal the Court of Appeal's judgment, together these two judgments provide important clarification:

• orders for anti-suit relief are considered interim and conservatory measures, even if they have ostensibly lasting consequences;
• compliance with any order made by a tribunal is to be treated as "necessary for the proper and expeditious conduct of the arbitration" for the purposes of enforcement of peremptory orders under s42. This will include orders restraining a party from pursuing litigation of its arbitral claims and from pursuing anti-arbitration applications (and includes orders granted by emergency arbitrators); and
• peremptory orders are not limited to conditional or "unless" orders given that the broader ordinary meaning of the word 'peremptory'.

The decisions strengthen the ability of tribunals and courts to safeguard arbitration agreements against parallel or ancillary proceedings brought to disrupt or undermine the arbitral process.

Update: In a further decision handed down on 9 February 2026, the Commercial Court granted anti-enforcement relief to the Contractors under section 42 of the Arbitration Act 1996 but declined relief under section 37 of the Senior Courts Act 1981. To read the judgment, see here Tecnimont SpA and another v LLC Eurochem North-West-2 (Russia) [2026] EWHC 255 (Comm).

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