Key takeaways
Tribunal’s procedural order
This cannot be challenged under s.68 Arbitration Act 1996 which is directed at challenging awards.
Stay of arbitration
There is no power to do so under CPR rule 3.1(2)(g), which is limited to stays of court proceedings.
Autonomy of arbitration proceedings
The English Court will only interfere with arbitral proceedings where it is really necessary.
Party 'A' -v- Partyy 'B' and another [2026] EWHC 327 (Comm)
The Court has made clear that it cannot or should not interfere with a tribunal’s procedural decisions prior to an award being made. Such an intervention was not provided for in the Arbitration Act 1996 (1996 Act) and, even if it were permitted, should only be made in exceptional circumstances.
The decision reflects the English Court’s respect for the autonomy of arbitration proceedings and its reluctance to interfere in the arbitral process unless strictly necessary.
The background facts
The two underlying arbitrations concerned a number of high value contracts for the supply of artillery rounds and rockets to Ukraine. In the arbitrations, Party B alleged that it had paid deposits towards some of the sums claimed by Party A in invoices for rounds and rockets but had not received the products. It claimed for the return of the deposits and greater sums in penalties and interest.
For its part, Party A alleged that Party B was not contractually entitled to choose what products it paid for against the relevant invoices and that armament production and supply in this case required the entire output from certain manufacturers to be bought and paid for in full before anything could be supplied to Party B. Party A contended that it had supplied everything that was paid for and that Party B was in breach for failing to pay for ordered and invoiced goods.
The contracts all contained an arbitration agreement in the same terms, providing for disputes to be determined by arbitration under the LCIA Rules by a sole arbitrator. Clause 11.6, which formed part of the arbitration agreement within each of the relevant contracts, stated that 'the Expedited Procedure shall apply and the dispute shall be decided on the basis of documentary evidence only'. The parties disagreed as to the applicability and effect of this provision.
On 20 December 2025, the sole arbitrator issued two orders, one in each of the arbitrations. They were labelled 'Procedural Order No. 17' in the first arbitration and 'Procedural Order No. 10' in the second arbitration (December Orders).
By the December Orders, the sole arbitrator refused to consolidate the arbitrations and refused to permit oral examination of witnesses and experts. As part of the December Orders, he stated that consolidation of the arbitrations 'would require redrafting parts of the draft awards in order to merge them into a single draft award…'
Applications to the Court
As a result of these decisions, Party A applied to the Court under s.68 of the 1996 Act, which allows a challenge to a tribunal’s award on the basis that it has committed serious irregularity amounting to substantial injustice.
Party A contended that in declining to order that there be an evidentiary hearing in each of the arbitrations for the purpose of allowing cross-examination of the witnesses, the arbitrator had failed in his duty, under s.33 of the 1996 Act, to act fairly and impartially between the parties and to adopt procedures suitable for resolving the issues in the case fairly.
Party A sought to have the December Orders set aside or declared to be of no effect insofar as they denied the parties an oral hearing. Party A also wanted a new tribunal to reconsider the issue of an oral hearing and wanted a declaration that any draft final awards produced by the sole arbitrator were of no effect.
Party A further applied under s.24 of the 1996 Act to remove the arbitrator on the basis that he could not conduct the arbitrations fairly and impartially. Party A alleged that the arbitrator had prejudged the proceedings and had shown himself to be biased or had displayed apparent bias.
Given the above, Party A sought a stay of the arbitrations under CPR rule 3.1(2)(g) on the basis that it would be unjust and inappropriate for the arbitral proceedings to continue while the Court was dealing with the various challenges being made by Party A.
Party A also sought a stay of the s.24 application.
In this decision, the Court dealt only with the application for a stay of the arbitrations.
The Commercial Court decision
The Court stated that the power under CPR rule 3.1(2)(g) to stay proceedings related to court, not arbitral, proceedings. Therefore, an application under that rule failed. However, in the Court’s view, what Party A really sought was an injunction to restrain the further pursuit of the arbitrations pending the determination of Party A's s. 24 and/or s. 68 applications.
The Court could not make such an order and, even if it could, it should not do so. There was no provision in s.24 or anywhere else in Part 1 of the 1996 Act for the Court to prevent the progress of an arbitration pending resolution of a s.24 challenge. The Court doubted it had jurisdiction to halt an arbitration pending a s. 24 challenge because this would be an intervention that was not provided for in Part 1 of the 1996 Act and was inconsistent with the clear indication in s. 24(3) that the arbitration proceedings may continue notwithstanding a pending application under s. 24.
The Court added that even if this was wrong, it should not intervene in any event. Such an intervention should only be made in exceptional circumstances, for example if the continuation of the arbitration was vexatious, oppressive, or unconscionable. A s.24 application did not of itself constitute exceptional circumstances and to decide otherwise would open the door to tactical applications designed to hold up the arbitration.
Any potential waste of time and costs did not amount to exceptional factors and were outweighed by the prejudice Party B would sustain if an injunction were granted. Such an injunction would cause delay for an indeterminate time and give Party A more time to prepare its final submissions in the arbitration than was consistent with the timetable Party B had been working to up to this point.
The Court added that insofar as Party A wanted to have the arbitrations consolidated pending the s.68 application, the Court did not have jurisdiction to interfere with the procedural conduct of an arbitration prior to the making of an award. The Court did not think, as argued by Party A, that the December Orders were in fact interim awards. They had the form of procedural orders and that reflected the reality. They did not settle substantive rights between the parties to the arbitrations.
The Court concluded that it could and should not interfere with the arbitral proceedings prior to an award being made. If there was a serious irregularity arising out of the way in which the arbitrator had conducted the arbitration, Party A could challenge the award or seek to have the arbitrator removed.
Comment
The decision highlights the distinction between a tribunal’s procedural order as opposed to an award. A s.68 application expressly states that the challenge for serious irregularity must be a challenge to an award.
