Arbitration Act 1996 section 42: neither a rubber stamp nor a licence to revisit

Section 42 of the Arbitration Act 1996 acts as an effective, although rarely used, mechanism to enforce a recalcitrant party to comply with an arbitrator’s peremptory order. But how deep into the merits of a peremptory order will a court delve before enforcing it?

In the recent case of Patley Wood Farm LLP v Brake and another, the High Court concluded that although section 42 gives the court discretion as to whether to enforce a peremptory order (i.e. an order that a party comply with a particular order by a deadline that has typically been set following the failure of a party to comply with a procedural order), a court is not required to revisit the merits of a tribunal’s decision to make such an order when exercising its discretion to enforce it.

This decision enforces the procedural nature of the court’s role in considering a section 42 application and should embolden parties to an arbitration to take recalcitrant arbitral opponents to court without fear that the court will review the merits of an arbitrator’s award or order…

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