COURT INTERVENTION IN ARBITRATION

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INTRODUCTION

The judgment of Mr Justice Butcher in Party ‘A’ v Party ‘B’ and Party ‘C’ [2026] EWHC 327 (Comm), is an authoritative restatement of the English court’s approach to applications seeking to halt arbitral proceedings whilst challenges to the tribunal are pending. It is a decision of practical significance for all parties engaged in London-seated arbitrations and, more broadly, for any party considering interlocutory relief against the continuation of an ongoing arbitration under the Arbitration Act 1996 (“the Act”).

The dispute arises from a series of high-value contracts for the supply of artillery rounds and rockets. Against that factual matrix, Party A sought to stay two parallel LCIA arbitrations by invoking CPR rule 3.1(2)(g), a power Mr Justice Butcher found to be inapplicable to arbitral proceedings, and alternatively to restrain those arbitrations by injunction. Both applications were dismissed.

BACKGROUND AND FACTS

The underlying arbitrations concerned contracts for the supply of armaments to Ukraine. Party B claimed the return of deposits paid against invoices, together with penalties and interest, alleging non-delivery. Party A contended that Party B had no contractual right to direct payments against specific invoices, and that armament production required the entire output of certain manufacturers to be procured and paid for before any supply could be made.

Both contracts contained an identical arbitration clause providing for resolution by a sole arbitrator under the LCIA Rules 2020. Clause 11.6 stipulated that the Expedited Procedure shall apply and that the dispute shall be decided on the basis of documentary evidence only. On 20 December 2025, the arbitrator issued Procedural Orders declining to consolidate the arbitrations and refusing to permit oral examination of witnesses. Those Orders disclosed that the arbitrator had already substantially drafted his final awards, noting that consolidation “would require redrafting parts of the draft awards.” Party A responded by pursuing both a section 68 challenge and a section 24 removal application and sought to halt the arbitrations in the interim.

THE LEGAL FRAMEWORK AND THE COURT'S ANALYSIS

A. Section 1 and the Non-Intervention Principle

The Act is founded on the principle, declared in section 1(c), that the court should not intervene “except as provided by this Part.” Section 24(3) further provides expressly that the arbitral proceedings may continue notwithstanding a pending removal application, a provision inserted specifically to ensure that the arbitration is not held up by a tactical application. Mr Justice Butcher concluded that any jurisdiction to restrain an arbitration pending a section 24 challenge is, at best, doubtful, since to do so would constitute intervention outside the statutory scheme and in direct tension with section 24(3).

B. CPR Rule 3.1(2)(g): A Misconceived Application

The application framed as a “stay” pursuant to CPR rule 3.1(2)(g) was dismissed summarily. The power to stay proceedings under that rule applies to proceedings before the court and not to arbitral proceedings. The application therefore failed in limine on that ground alone.

C. The Anti-Arbitration Injunction

The more substantive question was whether the court could grant injunctive relief to restrain the arbitrations pending the section 24 and section 68 challenges. Mr Justice Butcher applied the principle established in Elektrim SA v Vivendi Universal SA [2007] EWHC 571 (Comm), where Aikens J held that to invoke section 37 of the

Senior Courts Act 1981 as a means of reviewing a tribunal’s procedural decisions would undermine the Act and grant the court a general supervisory power it has never possessed. Proceeding on that basis, the judge concluded that even if jurisdiction existed, the threshold for intervention would be high: the continuation of the arbitration would need to be vexatious, oppressive, or unconscionable. The mere existence of a section 24 challenge, even an arguable one, would not constitute exceptional circumstances. The concern regarding wasted costs was dismissed as insufficiently exceptional, and the “dress rehearsal” argument, namely that written witness answers would dilute the forensic utility of any later cross-examination, was rejected on the basis that pre-prepared answers could equally benefit the fraud-alleging party by foreclosing novel oral explanations from witnesses.

D. The Section 68 Dimension and the Nature of the December Orders

Party A sought to bring its challenge within section 68 by arguing that the December Orders constituted interim awards. Mr Justice Butcher rejected that argument. The Orders were procedural in character and settled no substantive rights between the parties. Since section 68 operates at the level of awards and not procedural directions, the court has no general supervisory jurisdiction over a tribunal’s procedural conduct prior to an award being made.

E. Why H1 and another v W [2024] EWHC 382 (Comm) Was Not Applied

Party A’s strongest authority on the removal question was H1 and another v W, D and F [2024] EWHC 382 (Comm), in which Calver J removed a sole arbitrator under section 24(1)(a) after the arbitrator stated, at a procedural hearing, that he already knew what several witnesses would say, that he did not need to hear them, and that he was “extremely good friends” with the experts on one side, thereby giving, on the Halliburton fair-minded observer test, the firm impression of having pre-judged key evidential questions before the close of evidence.

H1 was not applied in the present case, and the reason is a matter of fundamental procedural distinction rather than factual disagreement. Mr Justice Butcher was not deciding the section 24 removal application on its merits; he was deciding the anterior question of whether the arbitrations should be halted pending that determination. H1 is authority for when removal will be granted, not for when proceedings may be suspended while removal is considered. The non-intervention framework of section 1(c), the express permission in section 24(3) for proceedings to continue, and the exceptional circumstances threshold for injunctive relief are all entirely separate from the apparent bias inquiry that drove the outcome in H1. On the injunction question, H1 simply had no direct application. The critical consequence is that it remains fully alive and potentially decisive when Party A’s section 24 application is finally heard on its merits.

F. Dilemma: Act Promptly or Lose the Right to Object

Section 73 imposes a strict statutory constraint: a party that continues to participate in an arbitration after becoming aware of grounds for objection risks losing the right to raise that objection later. This creates an immediate choice for any party confronting potential irregularity or apparent bias: bring the objection promptly, even if tactically uncomfortable, or remain silent and risk section 73 treating that silence as acquiescence.

In this case, Party A acted swiftly once the December Orders revealed the arbitrator’s pre‑drafted awards and refusal to permit cross‑examination. That prompt action places Party A on the safe side of section 73, but only for now. Continued vigilance is essential. Every procedural step must be taken with an express reservation of rights, since any conduct capable of appearing unconditional may erode the protections Party A has preserved.

COMMENTARY AND ANALYSIS

The judgment is a correct reaffirmation of the non-intervention principle. The court’s firm refusal to exercise supervisory power over a tribunal’s procedural conduct prior to an award accords with the philosophy of party autonomy enshrined in section 1(c) of the Act, and its rejection of tactical delay in high-value arbitrations is to be welcomed.

The factual position, however, discloses a genuinely disquieting state of affairs. An arbitrator who has substantially pre-drafted his awards before the close of evidence presents a qualitatively different concern from one merely alleged to have been brusque in procedural management. Pre-drafting of this character risks constituting a form of pre-judgment that strikes directly at the section 33 duty to act fairly and impartially. As

H1 v W demonstrates, the section 24 jurisdiction is responsive to precisely such concerns, yet the statutory architecture compels the affected party to endure proceedings, at least to an award, before that jurisdiction can be fully deployed. Section 24(3) was designed to prevent tactical abuse; its practical consequence in a case of substantiated pre-judgment may nonetheless be that a potentially tainted award is rendered before effective intervention is possible.

The principle of non-intervention is the foundation upon which the authority and usefulness of arbitration rests, and that commitment must be maintained even where procedural conduct gives rise to genuine concern. Equally, arbitration draws its legitimacy from the integrity of the process by which awards are reached, and the obligations imposed by section 33 are justiciable duties. Where those duties are demonstrably breached, the remedies under sections 24 and 68 exist to vindicate the right to a fair process. For practitioners, challenges must be raised promptly given that the section 73 bar operates without sympathy, and the sequencing of removal and serious irregularity applications must form part of the strategic calculus from the outset. Whether legislative reform should address the narrow circumstances in which pre-award intervention ought to be permitted remains an open question, but one of growing importance as challenges of this character increase in frequency and sophistication.