Limits of Court Assistance in Arbitration: No Jurisdiction Over Non-Parties Abroad
Understanding the DTEK Trading SA v Morozov Case
In DTEK Trading SA v Morozov and another [2017] Bus LR 846, the English Commercial Court clarified the boundaries of judicial assistance under section 44 of the Arbitration Act 1996. The decision confirms that English courts have no jurisdiction to make orders against non-parties to an arbitration, particularly when they are located outside the jurisdiction.
📂 Case Details
Case Title: DTEK Trading SA v Morozov and another
Citation: [2017] Bus LR 846
Court: High Court of Justice, Queen’s Bench Division (Commercial Court)
Judge: Mr Justice Teare
Date: 2017
Legal Area: International Arbitration – Court Assistance – Evidence – Service Out of Jurisdiction
Parties:
Claimant: DTEK Trading SA, a Swiss energy trading company within the Ukrainian DTEK Group
Defendants: Mr Morozov and another Ukrainian resident
⚖️ Background of the Dispute
DTEK Trading SA was involved in a London-seated arbitration concerning the quality of a cargo of coal. Each party to the arbitration relied on a different version of a settlement agreement between DTEK and the second defendant, a Ukrainian testing company.
The first defendant, who was not a party to the arbitration, produced one of those versions in a witness statement. To verify which document was genuine, DTEK applied to the English court under section 44 of the Arbitration Act 1996, seeking an order that the defendants preserve and produce the original document for inspection.
Because both defendants lived in Ukraine and were not parties to the arbitration, DTEK sought permission under CPR r 62.5(1)(b) to serve the arbitration claim form out of the jurisdiction.
🔍 The Legal Question
The key issues before the Commercial Court were:
Does the English court have jurisdiction under section 44 to make an order for evidence or document preservation against non-parties to an arbitration agreement?
If not, can the claim form nevertheless be served out of the jurisdiction on those non-parties under CPR r 62.5(1)(b)?
The Court’s Ruling
Mr Justice Teare refused the application, holding that:
The court’s powers under section 44 exist only in relation to the parties to the arbitration agreement.
The section does not extend to non-parties, even if the evidence sought from them is relevant to the arbitral proceedings.
Consequently, there was no jurisdiction to grant the requested order, and therefore no basis to permit service out of the jurisdiction under CPR r 62.5(1)(b).
In reaching this conclusion, the judge applied the reasoning of Males J in Cruz City 1 Mauritius Holdings v Unitech Ltd (No 3) [2015] 1 All ER (Comm) 305, where similar limits on section 44 jurisdiction were recognised.
However, the court noted obiter that where a party to arbitration seeks a specific document from a non-party, assistance might be available through a letter of request under section 44, provided it concerns a clearly identified document and no substantive claim is made against the non-party.
Significance of the Decision
This case sets an important boundary for parties seeking English court assistance in support of arbitration:
Section 44 powers are confined to disputes between parties to the arbitration agreement.
Non-parties outside the jurisdiction cannot be compelled by English court orders made under section 44.
The appropriate mechanism in such circumstances is often a letter of request for judicial assistance in the foreign jurisdiction.
The ruling reinforces the autonomy of arbitration and the limited, supporting—not supervisory—role of English courts.
What Businesses Should Know
For companies engaged in international arbitration:
Do not assume the English courts can compel evidence or document production from third parties abroad under section 44.
Plan your evidence strategy early: where non-parties hold crucial documents, use available procedural tools within the arbitration or request judicial cooperation through letters rogatory.
The decision underscores the importance of drafting arbitration clauses and evidence-sharing provisions that anticipate cross-border practicalities.
English courts will support arbitration, but only within the statutory framework and jurisdictional limits of the Arbitration Act 1996.