Section 44 of the Arbitration Act 1996 Reframed: Court Orders Against Third Parties (Part I) – Overview

Corporate Clients Insights, Corporate Disputes

A Shift in Court Support for Arbitration

When the Arbitration Act 2025 received Royal Assent on 24 February 2025 and came into force on 1 August 2025, it brought with it a deceptively simple but significant amendment to section 44 of the Arbitration Act 1996. Despite being originally seen as ‘clarificatory ‘by the Law Commission of England and Wales, the addition of just six words—”whether in relation to a party or any other person”—has expanded the English court’s power to make orders in support of arbitration, extending these powers explicitly to third parties.

This reform follows years of confusion and inconsistency in the case law, where tribunals attempting to secure evidence from non-parties or preserve assets held by third parties faced a patchwork of conflicting authorities. 

For practitioners advising clients in arbitration proceedings, this development opens a new frontier of strategic possibilities—but also raises complex questions about when, how, and against whom these powers can be deployed. 

The Legislative Background: From Cruz City to Apparent Clarity

The Pre-2025 Confusion

The uncertainty regarding section 44’s application to third parties stemmed from the fact that section 44(1) of the 1996 Act did not explicitly clarify how far the court’s powers extended beyond the parties to the arbitration agreement. Three major cases created a confusing landscape:

In Cruz City v Unitech [2014] EWHC 3704 (Comms), the High Court concluded that the power to grant an interim injunction under section 44(2)(e) did not extend to non-parties, denying the requested relief. Similar attempts to apply section 44(2)(b) preservation of evidence powers against third parties were equally unsuccessful in DTEK Trading SA v Morozov [2017] EWHC 1704.

However, in a partial reversal, the Court of Appeal in A and B v C, D and E [2020] EWCA Civ 409 held that section 44(2)(a)—the power to compel the taking of evidence of witnesses—was applicable to third parties. Flaux LJ’s reasoning was influenced by the practical reality that witnesses are often not parties to arbitration proceedings. The Court of Appeal left open the question whether the Cruz City strand of authority could be reconsidered. 

This inconsistent approach left parties and tribunals uncertain about which section 44 powers could be exercised against third parties and which could not—an unsatisfactory state of affairs for a leading arbitration jurisdiction.

The 2025 Solution

The Arbitration Act 2025 resolves this uncertainty. Section 44(1) now reads:

“Unless otherwise agreed by the parties, the court has for the purposes of and in relation to arbitral proceedings the same power of making orders about the matters listed below whether in relation to a party or any other person as it has for the purposes of and in relation to legal proceedings.”

This amendment expands court powers to make orders against third parties in aid of arbitration, generally aligning arbitration proceedings with the position that has long applied relation to the English court’s powers in support of litigation proceedings.

The Scope of Section 44: What Orders Are Now Available?

Section 44(2) of the 1996 Act lists six categories of orders that may be made against third parties:

1. Taking of Evidence of Witnesses (Section 44(2)(a))

The court may order a third-party witness to attend for examination, produce documents, or provide testimony. This power, already confirmed in A and B v C, D and E, is now placed on express statutory footing. Thus, subject to privilege and confidentiality considerations, banks, accountants, industry experts, or former employees who possess relevant information but are not parties to the arbitration can be compelled to give evidence.

2. Preservation of Evidence (Section 44(2)(b))

Third parties in possession of relevant evidence—whether documents, electronic data, or physical items—can be ordered to preserve and not destroy that evidence. IT service providers holding email servers, cloud storage companies, or third-party logistics providers with shipping records can be compelled to preserve evidence pending arbitration.

3. Inspection, Custody, and Preservation of Property (Section 44(2)(c)(i))

Where property that is the subject of arbitral proceedings is in the hands of a third party, the court can order inspection, photographing, preservation, custody, or detention. Bailees, warehouse operators, or secured creditors holding disputed goods can be required to allow inspection or maintain custody.

4. Samples, Observation, or Experiment (Section 44(2)(c)(ii))

The court may order that samples be taken, observations made, or experiments conducted on property in third-party possession. Independent testing laboratories, carriers holding damaged goods, or manufacturers with prototypes can be required to permit sampling or testing.

5. Sale of Goods (Section 44(2)(d))

In appropriate cases, the court can order the sale of perishable or depreciating goods held by third parties. Therefore, cold storage facilities holding perishable cargo or dealers holding rapidly depreciating equipment may be ordered to sell to prevent waste.

6. Interim Injunctions and Appointment of Receivers (Section 44(2)(e))

Perhaps most significantly, the court can grant interim injunctions against third parties and appoint receivers over third-party held assets, including Chabra-style freezing injunctions. Banks can be ordered to freeze accounts, brokers to halt trading, or receivers appointed over assets held by third-party trustees or escrow agents.