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Lloyd's Maritime and Commercial Law Quarterly

BOOK REVIEW - THE INJUNCTIVE JURISDICTION OF THE COMMERCIAL COURT WITH REGARD TO CONSENSUAL COMMERCIAL ARBITRATIONS

D. Rhidian Thomas

Lecturer in Law, University College, Cardiff.

The injunction is a powerful legal remedy by which conduct may be restrained or peremptorily commanded. The precise role the remedy is capable of playing with regard to consensual commercial arbitrations is uncertain. This uncertainty is due, at least in part, to the paucity of applications; and in turn this paucity is due, in substantial part, to the abundance of other supervisory remedies which may be resorted to when questions appertaining to commercial arbitrations arise.1 This alternative panoply of supervisory remedies is tangible proof of the historical and contemporary reluctance of both the courts and Parliament to allow arbitrations a province independent of the institution and institutions of law. In point of principle therefore there can be little objection to the existence of an injunctive jurisdiction, although the commercial community may be disturbed by the development of yet another head of judicial supervision, and those who are members of the international mercantile community may view it as yet another good reason for shunning London arbitration and taking their disputes and differences elsewhere. The available alternative remedies not only contribute to our understanding of the prevailing legal philosophy within which arbitrations operate, their availability is also crucial to any discussion surrounding the question of an injunction in this context. The injunction is an equitable remedy and therefore discretionary. In the exercise of this discretion the court will be reluctant, even when otherwise satisfied that an injunction is prima facie available, to grant an injunction when there exists, in the circumstances, an alternative and adequate remedy to meet the applicant’s grievance. Any deliberation surrounding the availability of the injunctive remedy must therefore include a taking stock of the alternative available remedies and an assessment of their adequacy in the circumstances of the case.2

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