English court willing to grant injunctive relief if emergency arbitrator cannot act in time: emergency powers under the Arbitration Act 1996

In TTSJV v BapCo (2026), BapCo engaged TTSJV under an EPC Contract to design, engineer, procure, construct, test and complete a modernisation programme to upgrade BapCo's existing oil refinery in Bahrain for a price of US$4,211,000,000. The parties agreed that the contract would be governed by the laws of England and Wales. They also agreed that any disputes arising under the contract would be resolved by binding arbitration under the rules of the LCIA, with London as the seat of arbitration.

On 18 May 2026, BapCo formally demanded payment of liquidated damages for alleged delay, and on 21 May 2026, it made a call on a performance guarantee issued in its favour by TTSJV's bank. On the same day, TTSJV requested the LCIA to appoint an emergency arbitrator. TTSJV was, however, concerned that the bank would pay the sum demanded under the performance guarantee before an emergency arbitrator could be appointed. It therefore also filed an urgent application for injunctive relief in respect of the guarantee demand with the court (see our previous Insight discussing this aspect of the case).

A hearing was held before the judge on 22 May 2026, with the application determined shortly afterwards. The whole process, from demand to determination, was therefore just one week, Monday to Friday. The judge ultimately declined to order any injunctive relief, but was willing to entertain it even where the appointment of an emergency arbitrator was an option under the LCIA rules.

Why did the court intervene?

Section 44 of the Arbitration Act 1996 allows the court to exercise its powers in support of arbitral proceedings in cases of urgency and to make such orders as are necessary for the purpose of, among other things, preserving evidence or assets. Under section 44(5), the court may act only if the arbitral tribunal, emergency arbitrator, or equivalent has no power or is unable to act effectively at the relevant time. The judge recognised that this was a case of urgency that the court should entertain under section  44(5) and held, accordingly, "any relief granted would have been on a short-term basis to hold the ring until the emergency arbitrator could act".

The judge was satisfied that there was a very real prospect that an emergency arbitrator might not be appointed or practically able to grant effective relief before the funds were released, due to the short period available for compliance with a demand under the guarantee and the likelihood that the bank would release the funds ahead of the Eid holiday. The application was accordingly listed, heard, and determined within approximately 24 hours.

Section 44(5) comes to the fore in urgent circumstances where even an emergency arbitrator may not be sufficiently speedy. The case is also a reminder that, however expedited the proceedings may be at an arbitral institutional level, a court's ability to grant interim relief at speed may still be unrivalled and, for the parties involved, vital. 

Arbitration rule reform

The gap between how quickly a court and an arbitral tribunal can each grant interim relief features in ongoing arbitral rule reform. The ICC emergency arbitrator framework was expanded by 2026 ICC rules, which introduced ex parte preliminary orders. Under this new mechanism, a party may seek an emergency order without notifying the opposing side if notice would risk frustrating the purpose of the application. This mechanism is analogous to the court's powers to grant injunctive relief for without notice applications and would be a useful tool for applications requiring urgent injunctive relief. 

The LCIA rules were last revised in 2020 but there is currently an ongoing consultation phase with respect to proposed further revision, with results potentially due later in 2026. It remains to be determined whether or not the LCIA rules will adopt the ex parte preliminary order mechanism provided for in the ICC rules to reduce the need for parties to rely on local courts for urgent injunctive relief.

Osborne Clarke comment

This decision is a useful reminder of important points for those involved in large-scale international construction and engineering projects.

Section 44 of the Arbitration Act 1996 remains a powerful tool in appropriate cases of genuine urgency. Where  even an emergency arbitrator will be unable to act in time, the court has demonstrated a clear willingness to act with remarkable speed to fill the gap, in this case listing, hearing and determining an application within approximately 24 hours. 

The court was considering interim relief on a short-term basis until the emergency arbitrator could act. However, a court's decision to provide injunctive relief could in some circumstances mean that an application would not need to be heard again by an emergency arbitrator or tribunal (as the case may be). 

Parties and their advisers should recognise that, in genuinely urgent cases, even an emergency arbitrator may not be able to act fast enough, and that section 44 of the Arbitration Act 1996 may provide a mechanism to bridge the gap.