Securing Enforcement of Arbitral Awards - The Problem(s) with Non-Parties

Abstract

Taking as its ‘base case’ an English-seated international commercial arbitration which has proceeded to the grant of a final award, this article provides a broad overview of how an award creditor, who has successfully obtained a recognition and enforcement order under section 66 of the Arbitration Act 1996 (the “1996 Act”), can obtain court orders against (foreign) non-parties in support of enforcement, perhaps to obtain information or to conserve assets. It does so from two (slightly overlapping) perspectives. First, that of English domestic law, i.e. what powers are available against (foreign) non-parties to the arbitration after an award has been granted? (This is sometimes referred to, sometimes confusingly, as the English court’s ‘jurisdiction’.) Secondly, that of private international law, i.e. when does the English court have (international) jurisdiction over foreign non-parties?

Keywords: International commercial arbitration; enforcement of arbitration awards; jurisdiction; non-parties; service out of the jurisdiction