In a Commentary on this site posted March 23, 2026, I referred to a recent UK Court of Appeal decision concerning the powers of UK courts under the UK Arbitration Act to enforce the “peremptory orders” of UK-seated arbitral tribunals. Tecnimont S.p.A. and LLC MT Russia v. LLC EuroChem North-West, [2026] EWCA 5 (available on JusMundi). That case arose in the geo-political context of a commercial arbitration involving entities and persons affected by UK and EU sanctions against Russia. These sanctioned parties, despite having agreed to arbitrate in “Western” venues like London, under “Western” arbitration rules like the ICC Rules, have availed themselves of Russian legislation that declares the exclusive forum for such disputes to be the Arbitrazh Courts of Russia. The UK Court of Appeal judgment in the Tecnimont case effectively endorsed a three-step process for “antisuit” injunctive relief against such Russian court proceedings: (1) a successful application to the UK-seated arbitral tribunal for antisuit injunctive relief in the form of an order directing the Respondents participating as Claimants in the corresponding Russian cases to discontinue them (and refrain from seeking to enforce outside of Russia the judgments obtained in their favor), (2) when there has been no compliance with the initial order giving such directions, the issuance of a peremptory order by the Tribunal ordering compliance by a date certain, and (3) after the deadline for compliance has passed unheeded, an application to the UK High Court of Justice, made by the Tribunal or by a party with leave of the Tribunal, for enforcement of the peremptory order.  (The Judgment of the High Court of Justice in the Tecnimont case can also be found on JusMundi. Its UK citation is [2025] EWHC 3151).

In today’s Commentary I raise a different set of issues about the “peremptory order” framework for judicial support of case management by international arbitral tribunals: Are there good reasons supporting the adoption in the United States of a similar mechanism for use by US-seated tribunals?  I raise this question not because the US lacks effective legal tools for arbitrators who may face the Arbitrazh Court challenge from US-sanctioned Russia-related parties. Such tools exist,  generally speaking, because arbitration rules typically selected in US-seated arbitrations permit (i) interim relief including antisuit relief to be granted by tribunals in the form of a Partial/Interim Award, or (ii) direct access to the US courts may be had for such antisuit relief even after the Tribunal is constituted. Also, in the US  the party may present the Partial/Interim Award granting arbitral antisuit relief to a US District Court at the seat of arbitration for accelerated judicial enforcement through the federal motion practice procedure. What is missing in the US setting is a procedural device that a US-seated tribunal may deploy to trigger similarly accelerated judicial enforcement of arbitral procedural orders that are not regarded as awards under US law and cannot be reviewed as awards under the Federal Arbitration Act even if so denominated by the Tribunal. (Under US arbitration law whether there has been an “Award” depends on the substance not the label).

The UK is not the only major common law home to international arbitrations that provides for some judicial enforceability of arbitral procedural orders. A quick survey reveals that such relief is obtainable, for example, in Hong Kong, Singapore, Australia and Québec. The arbitration laws of many other major jurisdictions provide for judicial enforcement of arbitral interim measures, without requiring (as the US does through FAA case law) that such measures be adopted in a ruling that can be considered to be an Interim or Partial Award.  Is the United States, which hosts a considerable number of significant international arbitrations marred by serial non-compliance with arbitral procedural orders by recalcitrant parties, ready for and even in need of a “peremptory order” process, and if so how might it be enacted?

A Primer on the UK Peremptory Order Framework

US practitioners should appreciate that the peremptory orders permitted by the UK Act are not confined to what we consider as traditional categories of interim measures that may, in the discretion of a tribunal under institutional rules often used in US seated cases, be issued in the form of an Award. Section 41(5) of the UK Act states:

“If without sufficient showing of cause a party fails to comply with any order or directions of the tribunal, the tribunal may make a peremptory order to the same effect, prescribing the time for compliance with it as the tribunal considers appropriate.”   (emphasis supplied).

Section 41(5) builds upon section 41(1) — the first sub-section of Section 41 entitled  “Powers of tribunal in case of party’s default.” S. 41(5) states:

“The parties are free to agree on the powers of the Tribunal in case of a party’s failure to do something necessary for the proper and expeditious conduct of the arbitration.”

Section 41(7) then provides authority for the Tribunal to adopt the types of remedial measures for non-compliance that are familiar to US practitioners and embedded in the rules of US providers: preclusion orders, costs orders, adverse inferences. But the ability of the tribunal to adopt such remedies is expressly stated in S. 41(7) to be “without prejudice to section 42 (enforcement by court of peremptory orders)“. (emphasis supplied).

Section 42 of the UK Act, entitled “Enforcement of peremptory orders of tribunal or emergency arbitrator” states:

(1) Unless otherwise agreed by the parties, the court may make an order requiring a party to comply with a peremptory order made by the tribunal or (as the case may be) the emergency arbitrator.

(2) An application for an order under this section may be made—

(a)  by the tribunal or the emergency arbitrator (upon notice to the parties),

(b) by a party to the arbitral proceedings with the permission of the tribunal or the emergency arbitrator (and upon notice to the other parties), or

(c) where the parties have agreed that the powers of the court under this section shall be available.

(3) The court shall not act unless it is satisfied that the applicant has exhausted any available arbitral process in respect of failure to comply with the peremptory order.

(4)  No order shall be made under this section unless the court is satisfied that the person to whom the peremptory order was directed has failed to comply with it within the time prescribed in the order or, if no time was prescribed, within a reasonable time.

(5) The leave of the court is required for any appeal from a decision of the court under this section.

Thus the UK arbitration statutory scheme, where applicable, creates the possibility for judicial support for arbitral tribunals, in addressing uncooperative conduct of recalcitrant parties, that is a missing feature of US-seated arbitrations. How often resort to the UK courts is had in this fashion to discipline non-compliance with peremptory orders on matters more mundane than those implicated in Tecnimont is unclear; online newsletters from UK law firms commenting on that case suggest that use of the peremptory order enforcement process is infrequent. To be sure, Section 42 exhibits features that discourage its overuse and diminish the risk of greatly expanded ongoing judicial involvement in arbitration proceedings: the Court’s power to enforce a peremptory order is permissive not required, and a party may not proceed without leave of the tribunal unless there is an underlying mutual agreement of the parties to use this procedure. Also, the requirement that the applicant shall have “exhausted any arbitral process in respect of failure to comply with the peremptory order” may be deployed by the UK courts to screen out some applications. But the “without prejudice” language in section 41(7) (see quotation above), and the permissive language of that section (“the tribunal may do any of the following….”)  indicate that section 42 (3) “exhaustion of arbitral process” does not mean that a Tribunal must first deploy the section 41(7) powers and find them to be inadequate.  This reading is reinforced in the Judgment given by the High Court of Justice in the Tecnimont case, where section 42(3) exhaustion was addressed in a single sentence [at para. 32]: “In relation to the requirement of section 42(3), I am satisfied that there is no further arbitral process available to the Claimants to enforce POs 18 or 22 or 23, or otherwise to restrain [Respondent].” (emphasis supplied). Thus “arbitral process” was understood to mean a procedure within the arbitration, not a remedy available to the Tribunal as a consequence of the non-compliance. Section 42(3) is to be understood as allowing the possibility that the arbitration rules adopted by the parties, or specific procedural directions adopted by the Tribunal, mandate that some step beyond issuance of the peremptory order be taken within the arbitration before a peremptory order may become ripe for judicial enforcement.

It is likely true that drafters of the UK Act fashioned Sections 41 and 42 in part to address judicial enforceability of arbitral interim measures orders in cases under the London Court of International Arbitration (LCIA) Rules, having in mind that LCIA Rules, unlike many other institutional rules, do not provide for tribunals to grant interim relief in the form of a Partial/Interim Award. (See Art. 25.1 of the LCIA Rules, and compare, e.g., Art. 28.1 of the ICC Rules, Art. 27.2 of the ICDR Rules, Rule R-38(b) of the AAA Commercial Rules; Art. 45.1 of the SIAC Rules). But the statute clearly brings within its scope “any order or directions of the tribunal” (emphasis supplied) and leaves further limitation on judicial relief to the discretion of the Court.

Adoption into US arbitration law of a comparable peremptory order enforceability scheme would fill an enforcement gap for US-seated arbitrations unrelated to interim measures: potential judicial enforceability of arbitration procedural orders that would not, under FAA jurisprudence, qualify as Awards entitled to judicial enforcement, even if denominated as such by the tribunal, because they do not, unlike arbitral interim measures in many instances, finally and definitively resolve, without potential further action by the arbitral tribunal, a separate independent claim or a dispute that is time-sensitive, separable from the merits, and/or instrumental to the effectiveness of the final relief sought. [As to this dimension of the FAA jurisprudence on finality of Partial/Interim Awards, see, e.g., Arrowhead Global Solutions, Inc. v. Datapath, Inc., 166 Fed. Appx. 39, 43-44 (4th Cir. 2006); GEM Yield Bahamas Ltd. v. Mullen Technologies, Inc., 2024 WL 2959259 at *6 (S.D.N.Y. June 11, 2024); Van Andel v. Lindberg, 732 F. Supp.3d 476, 482-83 (M.D.N.C. 2024); Ecopetrol S.A. v. Offshore Expl. & Prod. LLC, 46 F. Supp.3d 327, 336-37 (S.D.N.Y. 2014); CE Int’l Resources Holdings v. S.A. Minerals Ltd. Partnership, 2012 WL 6178326 at **2-3 (S.D.N.Y. Dec. 10, 2013).]

Fitting A Peremptory Order Process Into US Arbitration Law

The Federal Arbitration Act in the US is by design not a prescriptive statute for the conduct of US-seated arbitrations, with the exception of its provision (Chap. 1 Section 7) concerning issuance of witness summonses by arbitral tribunals. As a practical matter, if a peremptory order process were to be adopted, it would be at the level of State arbitration legislation in States that frequently host international arbitrations, e.g. New York, Florida, Texas and California.  In this section I address two questions. First, would enforcement of peremptory orders in a US District Court at the seat of international arbitration be “an action or proceeding falling under the [New York or Panama] Convention” and thus within such a Court’s subject matter jurisdiction under FAA Chapter Two?  Second, would such an innovation in international arbitration law of individual States be pre-empted by the FAA, on the basis that the federal statute limits judicial involvement to enforcement of awards, arbitration agreements, and witness summonses issued by tribunals?

A good case can be made that federal subject matter jurisdiction to provide such relief would exist under FAA Chapter 2.  It is well settled that judicial interim measures based on state law, in support of arbitration, may be granted under FAA Chapter Two and that the application for such relief is properly viewed as an “action or proceeding falling under the [New York] Convention,” within Section 203. See, e.g., Stemcor USA Inc. v. Cia Siderurgica do Para Cosipar, 927 F.3d 906, 907-11 (5th Cir. 2019) (finding subject matter jurisdiction under the Convention over application for a pre-award attachment based on Louisiana attachment statute); E.A.S.T., Inc. of Stamford v. M/V Alaia, 876 F.2d 1168, 1173 (5th Cir. 1989) (same, in setting of maritime attachment);  Borden, Inc. v. Meiji Milk Prods., 919 F.2d 822, 836 (2d Cir. 1990) (jurisdiction over preliminary injunction in aid of arbitration was proper because the remedy sought did not seek to “bypass arbitration”). By extension, federal appellate courts have held in recent years that subject matter jurisdiction exists under FAA Chapter Two, when the District Court has “primary jurisdiction” in a US-seated case, for “‘necessary ancillary proceedings that ensure the proper functioning of the underlying arbitration'”. See Molecular Dynamics, Ltd. v. Spectrum Dynamics Medical Ltd., 143 F.4th 70, 86-87 (2d Cir. 2025), quoting from Jones Day v. Orrick, Herrington & Sutcliffe, 42 F.4th 1131, 1139  (9th Cir. 2022). Accord, CollegeStreet Import & Export (Tinajin) Co. v. Loyalist, LLC, 2025 WL 4660646 at *6 (S.D.N.Y. Mar. 20, 2025).

If these cases are understood to stand for the principle that subject matter jurisdiction exists under Chapter 2 to enforce state law measures that backstop the procedural powers of the arbitrators to which the parties have agreed, then a peremptory order process adopted into State arbitration law would appear to be just such a measure.

Some federal court decisions in FAA Chapter 2 award enforcement cases have referred to state international arbitration statute standards concerning issues not addressed in the FAA. For example, in Carlton Energy Group, LLC v. Cliveden Petroleum Co., 2023 WL 168754 at *4 (S.D. Tex. Jan. 12, 2023), the District Court in addressing a motion to vacate in part a Convention Award made in the United States at a seat in Houston, Texas, referred to the Texas International Arbitration Act as a source of arbitral discretion to award costs and fees to a prevailing party. District Courts in Florida have characterized the Florida International Commercial Arbitration Act “as a gap filler to the [New York] Convention for a federal court sitting in primary jurisdiction.” See, e.g., Dominicana Renovables, S.L., v. Dominican Republic, 2022 WL 521191 at *2 (S.D. Fla. Feb.12, 2022); Sural (Barbados) Ltd. V. Republic of Trinidad, 2016 WL 4264061 at *4 n.4 (S.D. Fla. Aug. 12, 2016).  A U.S. District Court in Chicago similarly referred to the Illinois International Commercial Arbitration Act as “essentially a gap-filling law.” Certain Underwriters at Lloyd’s, London v. BCS Ins. Co., 239 F.Supp.2d 812, 8116 (N.D. Ill. 2003).

This notion of State arbitration law “filling gaps” where the FAA takes no position – and there are many such gaps — appears to be consistent with the federal courts’ approach to FAA pre-emption.  Recent federal district court decisions from California helpfully condense FAA pre-emption jurisprudence from the US Supreme Court into two categories: first, an “equal treatment principle” positing that the FAA preempts state laws that disfavor arbitration by adopting legal rules about contract enforceability that apply only in the arbitration setting or derive their meaning from the fact that an arbitration agreement is at issue, and second, an “obstacle preemption” principle that requires FAA preemption of state laws that stand as an obstacle to the achievement of the purposes and objectives of the FAA. See, e.g., Ding v. Structure Therapeutics, Inc., 755 F.Supp.3d 1200, 1211-12 (N.D. Cal. 2024); Belyea v. GreenSky, Inc., 637 F. Supp.3d 745, 755-56 (N.D. Cal. 2022). The proposed authorization of judicial enforcement of peremptory arbitral orders does not disfavor enforcement of arbitration agreements. It would operate only with respect to arbitration agreements that make applicable state arbitration laws providing for such a procedure (usually because, as State international arbitration laws provide, they are applicable if the parties have agreed to a seat of arbitration in that State).

Preemption would seem to be an issue, if at all, only if “obstacle preemption” applies — and then only if it were established that one of the objectives of the FAA was to confine judicial involvement in arbitrations to enforcement of arbitral awards and arbitration agreements (and to make arbitral subpoenas judicially enforceable). But the extension of FAA subject matter jurisdiction to “necessary ancillary proceedings” such as pre-award attachment of assets, injunctions in aid of arbitration and enforcement of arbitral witness summonses appears to disfavor such a narrow view of the FAA’s objections. Indeed the adoption by a number of states of international arbitration statutes based on the UNCITRAL Model Law (e.g. Texas, Florida, Georgia) is evidently based on the premise that the FAA does not “preempt the field” of international arbitration. Moreover, once the parties have adopted a state law-endorsed procedure for application in their arbitration, and the procedure is not in direct conflict with a provision of the FAA that the parties may not vary by agreement, the FAA’s objective of giving effect to arbitration on the parties’ chosen terms would appear to weigh against a finding of FAA preemption. Cases holding that state arbitration law does not apply due to FAA pre-emption, on the other hand, are typically cases where a losing party sought award vacatur under state arbitration law standards more favorable to the vacatur applicant than the FAA. See, e.g., Gulfstream Aerospace Corp. v. OCELTIP Aviation Pty., 451 F.Supp.3d 1370 (S.D. Ga. 2020), aff’d, 31 F.4th 1323 (5th Cir. 2022), cert denied, 143 S.Ct. 577 (2023).

Reasons State International Arbitration Laws Might Adopt a Peremptory Order Process

There are several reasons why the peremptory order procedure may be attractive to parties that regularly select US seats for their international arbitrations. It follows that such reasons might appeal to State legislatures, as innovations that would make their States more attractive for selection as US seats for international arbitration:

1. In regard to interim measures, there may be several reasons why a Tribunal would be reluctant to provide the measures in the form of an Award. Tribunals often prefer not to relinquish a degree of procedural control by issuing a ruling that the parties obligated to comply would have an immediate legal right to challenge by a petition to vacate in a federal court. The vacatur petition may make the existence of a confidential arbitration non-confidential, with the federal proceedings becoming a spectacle played out in online legal news media. The party applying for vacatur may ask the court to stay the arbitration. The Tribunal may wish to have flexibility to modify or supplement the interim measures granted and may be reluctant to fuel any argument that it has become functus officio as to some subject matter by making a Partial/Interim Award. Under the UK model of the peremptory order process, the tribunal generally retains control over judicial involvement, as the options for judicial enforcement proceedings are mainly (i) for the tribunal to apply to the Court for enforcement, or (ii) for the applicant for the measure to apply to the Court with leave of the tribunal (unless the Parties have mutually agreed in advance to the judicial enforcement process as a matter of right).
2. An Award may only properly be made to be binding upon and enforceable against parties over whom the Tribunal has jurisdiction. If certain parties who are potential addressees of the ruling have objected to jurisdiction but have accepted that the objection should be determined in the Final Award or some other later stage, the tribunal must either accelerate ruling on the jurisdiction objection or confine its Interim (or Partial) Award to parties who have not objected. Parties who have made such objections but agreed to participate in the arbitration without prejudice will have explicitly agreed (such as in procedural order on consent joining the jurisdiction objection to the merits), or arguably otherwise agreed by implication, to be subject to the tribunal’s procedural powers for so long as they are participants. Indeed the UK Court of Appeal held in S3D Interactive, Inc. v. Oovee Ltd., [2022] EWCA Civ. 1665, that a peremptory order under Arbitration Act Section 42 was enforceable against a party objecting to arbitral jurisdiction for the duration of its participation in the arbitration.
3. Some significant procedural orders are purely procedural, and not sensibly denominated as Awards, and yet their judicial enforceability in the tribunal’s discretion may enhance efficiency and efficacy. Presumably this is why the UK Arbitration Act provided for peremptory order enforceability as to “any order or direction” even though the evident main target was interim measures that would be in Order form not Award form under LCIA Rules Art. 25.1 An order for production of evidence, or that requires the testimonial appearance of a particular witness who is a party or is within the party’s control, are good examples. If unexcused non-compliance with such an order may be an early indication that the offending party will deploy all available means to resist any adverse merits outcome, substantial time and cost may be saved if that strategy can be put to an early test by placing that order before a Court that has a full panoply of civil and criminal contempt remedies at its disposal.
4. Arbitrators may regard arbitral remedies for non-compliance as inadequate. An interim cost-shifting order awarding costs to the prevailing party on a procedural dispute may not secure compliance if the amount to be paid is not large enough to affect party conduct. A judicial contempt sanction involving an escalating daily amount for continued non-compliance, backed also by the potential for coercive civil confinement, may be much more effective. In situations involving non-production of evidence or required disclosure, tribunals may wish to have the judicial enforcement option to coerce performance of the obligation, rather than be forced to rely on adverse inferences, in combination with evidence from only one side, in deciding merits issues.
5. Some applicable arbitration rules may require that an evidentiary hearing be conducted, unless waived, with respect to any issues to be resolved in an Award whether Partial or Final. Busy Tribunals can find it difficult to schedule on short notice evidentiary hearings or even oral arguments – based on their own full calendars and aggravated by the scheduling non-cooperation sometimes deployed by recalcitrant parties. A non-Award ruling based on written submissions will in practice be a tempting solution where there is felt to be an urgency for some relief to be given, and it is regrettable that in the US setting this may be at the sacrifice of the effectiveness of the measures adopted. Judicially enforceable peremptory orders, on the other hand, can as a practical matter accelerate the adoption of coercive sanctions by courts and also shift some of the time-cost burden of party disobedience to those courts in the initial discretion of the tribunal and at the further discretion of the Court.

Closing Observation

I believe we can have some confidence that there should be no FAA jurisdiction or preemption obstacles should a State legislature at a vital US international arbitration seat elect to adopt a version of the UK peremptory order scheme into its statutory law on international arbitration. Whether there is an appetite in the arbitration community for such an innovation is a separate matter. I have sought here to identify some of the reasons why such a device would enhance the case management toolkit for US seated tribunals in a constructive way.

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