Court Intervention in Arbitration Process to Assist Enforcement

This report delves into the crucial role of court intervention within the arbitration process, specifically focusing on its assistance in enforcing arbitrators' decisions. The report examines various instances of court intervention, including pre-arbitration actions such as staying legal proceedings and providing interim protection measures, as well as interventions during and after the arbitration process. It references key legal frameworks like the Arbitration Act 1996 and relevant case law to illustrate the court's power in granting interim relief, dismissing claims for non-compliance, awarding interest, and assisting in evidence gathering. The report also highlights the court's role in deciding challenges to arbitrators and ensuring the fairness and effectiveness of the arbitration process, particularly within the context of petroleum-related disputes. The conclusion emphasizes the benefits of arbitration as a cost-effective and private means of dispute resolution, enhanced by court intervention for legal adherence and the protection of arbitrators.

Running Head: COURT INTERVENTION IN ARBITRATION PROCESS
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Court Intervention in Arbitration Process to assist Enforcement of Arbitrators
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Court Intervention in Arbitration Process to Assist Enforcement of Arbitrators
An arbitration is basically the non-judicial process of settling a dispute wherein an arbitrator
(an independent third party) makes a binding decision which carters for every person need. The
arbitration process is suitable because it is inclined to address the needs of the parties, the
arbitrators can be selected for their expertise, its confidentiality, cheaper than a court proceeding,
there exist restricted grounds of appeal and the awards of arbitration are enforceable by the court
implying they are done formally. There are various situations where court intervenes before the
reference to arbitration, during the arbitration process of a petroleum-related dispute and after the
arbitration process. Before the beginning of the arbitration the court can intervene in two
circumstances: to stay on legal proceedings, court can indirectly direct an arbitration after the
application of a party to an arbitration agreement; interim protection measures where the courts
own power to in relation to interim orders purposely for maintaining the status quo not known
and during arbitration; and if the party requesting of the legal proceedings goes to court in the
manner outlined under rule 2 of the Arbitration Rules of 1997, this is according the Kenyan laws
(Shapiro, 1968).
The court can intervene in extending the powers of the court (Park, 1997). The section 44 of
the Arbitration Act 1996 bestows power upon the court to give interim injunctive relief to offer
protection of an arbitration. This section has critical jurisdictional restrictions and limits any
appeal rights to the case in which the judge himself has offered an authority permission to appeal.
In the case of SABMiller Africa v East African Breweries Ltd [2010] EWCA Civ 1564 the
question was in the parties initially had an agreement extended by the power of the court as
provided under section 44 and in case they had, was that extension permissible or not? An
application of section 44 what witnessed in the case of Petroleum Investment Company Ltd v

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Kantupan Holdings Co Ltd, October 2001 considered by Toulson J an unreported ruling which
significantly gives the discretionary and the jurisdictional elements in granting relief.
The next situation is when there a need to dismiss the claim for non-compliance. The
section 41(3) of the Arbitration Act 1996 states that "If the tribunal is satisfied that there has been
inordinate and inexcusable delay on the part of the claimant in pursuing his claim and that the
delay (a) gives rise, or is likely to give rise, to a substantial risk that it is not possible to have a
fair resolution of the issues in that claim, or (b) has caused, or is likely to cause, serious prejudice
to the respondent, the tribunal may make an award dismissing the claim." the first challenge
against an award under section 41(3) was witnessed in TAG Wealth Management v West [2008]
EWHC 1466 (Comm) classified under the sections 69 and 68 of the 1996 Act.
It is also the power of the court to awards interest. Mr Justice Beatson took into
consideration the power of the court in the case of Gater Assets Ltd v NAK Naftogaz Ukrainiy
(No 2) [2008] EWHC 1108 (Comm) in giving a judgment to enforce a New York Convention
Award, for an award of interest for the duration between the award date and date of payment in
situations where the arbitrators have not taken an initiative to do so (Park, 1997).
The court is a subject to giving orders of protection during the Arbitration. Expect in cases
where the parties have agreed otherwise, the arbitral tribunal can ask for a party order (any of the
parties) to avail an interim protection measure to the extent to which the tribunal may see it
necessary in relation to the issue in dispute. For instance, in IPCO(Nigeria) LTD v Nigerian
National Petroleum Corp [2017] UKSC 16, enforcement issue arose. The UK Supreme Court
offered significant guidance concerning when security may or may not be ordered in the
proceedings to implement a New York Convention award as outlined in AA 1996. It laid up the

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order of the Court of Appeal (CA) directing the Nigerian National Petroleum Corp (NNPC) to
raise $100 million security relevant to the Nigerian Arbitrary award in favour of IPCO (Nigeria).
The SC ruled that the court powers to subject conditions on orders were not significant and
appropriate in this case. The enforcement conditions were undertaken under the New York
Convention outlined codes which disregard the security requirement in situations of the presence
of an arguable challenge under article V (Park, 1988).
The court can intervene in Assisting to gather evidence for the Arbitration use. The has the
power to pick evidence for use during the tribunal hearing if either of the parties request. As per
Section (44)(2)(e) of Arbitration Act of 1996, the court has the permission to offer an interim
injunction in the help of the arbitration agreement. In a case of urgency, the court may come in to
preserve evidence or assets as (s44 (3)).
The court has the power to decide on the challenge of an attributor brought through court.
The parties are allowed to decide on how to challenge an arbitral tribunal under the section 24 of
the AA 1996. in P v V and others [2017] EWHC 148 (Comm), the court rejected that the
application for disclosure of documents. In P v V and others [2017] EWHC 194 (Comm).
Popplewell J rejected the application to disregard the arbitrators appointed by the two parties. He
discovered that the tribunal had not appropriately assigned its decision-making roles to the
tribunal secretary to get his perception on procedural applications. Popplewell realized that the
evidence was inadequate in establishing a shortcoming to carry out proceedings. No evidence of
significant injustice existed as outlined by section 24 of the AA 1996. In some other cases, the
court can still approve the removal of an arbitrator under section 24 AA 1996 in case the party-
nominated arbitrator lacks the qualifications required as in Toniscar Ltd and other v Allianz
Insurance and others [2017] EWHC (Comm).

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Arbitration form one of the cheapest and comfortable means of solving disputes with less
privacy breach. in relation to petroleum laws, court intervention makes the whole process much
better assisting in legal adherence and protection of the arbitrators. (Lew, 2008)
References
Shapiro, D. L. (1968). Some Thoughts on Intervention Before Courts, Agencies, and
Arbitrators. Harvard Law Review, 721-772.
Lew, J. D. (2008). Does national court involvement undermine the international arbitration
process. Am. U. Int'l L. Rev., 24, 489.
Park, W. W. (1997). Determining Arbitral Jurisdiction: Allocation of Tasks Between Courts
and Arbitrators. Am. Rev. Int'l Arb., 8, 133-367.
Park, W. W. (1988). National law and commercial justice: Safeguarding procedural
integrity in international arbitration. Tul. L. Rev., 63, 647.