Section 44 of the Arbitration Act 1996 gives the English courts power to grant interim relief in support of arbitration in certain circumstances. Section 44(3) provides that "If the case is one of urgency, the court may, on the application of a party or proposed party to the arbitral proceedings, make such orders as it thinks necessary for the purpose of preserving evidence or assets".
The claimant sought disclosure from the defendants. It argued that the "asset" which required preservation was its business and that unless the order for disclosure was made, the arbitration could not be expedited, and hence its business would collapse and the "asset" lost. There is prior caselaw to the effect that the term "assets" in section 44 should not be construed narrowly, and could include contractual rights (see Cetelem SA v Roust Holdings ).
Phillips J held that the application failed on the basis that the claimant could not demonstrate that there was any real urgency and, furthermore, the claimant was not relying on the arbitration to produce an award which would fund its business. Accordingly, the judge was not required to decide the issue of whether an asset included the applicant's business although he did say that: "it is quite unclear why advance disclosure in the arbitration is necessary to preserve the JVC business, even if that was otherwise a tenable argument".
COMMENT: The argument run by the applicant was an interesting one. Although Cetelem confirmed that the meaning of an asset went beyond property and goods, to include, for example, the right which a claimant is trying to protect or assert in the arbitration, the argument in this case that an asset could include the applicant's business would appear to widen the definition even further. The judge did not expressly state that that was too wide a definition, but he was not required to do so because the application failed on other grounds, and so the argument might be run in another case.