Commercial Disputes Weekly Issue 296 22 September 2026

ARBITRATION

A dispute as to the validity of termination of an EPC contract and calls on the related bonds was referred to arbitration. JHA unsuccessfully sought interim measures from the tribunal restraining calls on the bonds. It then brought a challenge under section 68 of the Arbitration Act 1996 alleging serious irregularity because the tribunal had applied a higher threshold test than that agreed by the parties. The tribunal’s decision was encapsulated in Procedural Order No. 4 (“PO4”). The primary issue was whether it was an award, such that it could be subject to a section 68 challenge. The court recognised that whilst the description of the decision by the tribunal was a factor, the assessment was fact specific and depended on all the circumstances. Although the order was final in that it determined the application, it was not determinative of IKC’s ability to call on the bonds pending resolution of the underlying dispute. The court held that there was no proper basis for saying that PO4 was an award and so it was unchallengeable.

JKD and another v IKC [2026] EWHC 2031 (Comm), 31 July 2026

JURISDICTION – MISREPRESENTATION

A dispute arose between TMT, a metal trader incorporated in Switzerland, Mr Gupta, sole director of TMT and resident in Dubai, and Sucden a derivatives and commodities broker incorporated in England and Wales. Sucden alleged that TMT owed monies to it following margin calls on a trading facility. There were also allegations of deceit and misrepresentation. The current proceedings relate to service of proceedings on Mr Gupta. The Court of Appeal upheld the lower court decision that England had jurisdiction over the claim as the alleged misrepresentation caused loss in England, where the debt should have been paid. It was also possible that the allegedly tortious acts were carried out in London as the misrepresentations were said to have been made by Mr Gupta at a meeting in London. Both the tort damage and tortious act gateways for jurisdiction meant that the claim could be served on Mr Gupta outside the English jurisdiction.

Sucden Financial Ltd v TMT Metals AG and others [2026] EWCA Civ 986, 31 July 2026

CONSTRUCTION – THIRD PARTY CONTRACTUAL RIGHTS

A subcontractor under a groundworks contract for a school extension on the NEC4 engineering and construction subcontract form has failed in its attempt to recover outstanding sums directly from the employer. The main contractor, ISG, went into administration, with outstanding sums owing to the subcontractor, who alleged that the employer had been in breach of the main contract when it made payments for the subcontractor’s work directly to ISG. The money should have been paid into the project bank account. The claim failed on a number of grounds including in relation to the Contracts (Rights of Third Parties) Act 1999. The subcontractor was not a named supplier and so did not fall into the group on whom a benefit was conferred by the Act. Further, the employer was not in breach of the obligation to pay into the project bank account where no such account had been established.

E & TL Jones (Civils) Ltd v Vale of Glamorgan Council [2026] EWHC 2054 (TCC), 4 August 2026

COMPANIES

The Companies Court has confirmed and exercised its powers under section 125 of the Companies Act 2006 to rectify a company’s register of members, even where no such register existed. After hearing evidence about the relevant shareholdings of P1 Pit Stop Limited, the court made various orders to ensure the register reflected the correct shareholders and proportions. The court rejected an assertion that some shares were held on trust and also held that there was no provision which permitted shares to be expropriated following wrongdoing.

Palmer v P1 Pit Stop Ltd [2026] EWHC 1924 (Ch), 31 July 2026

INJUNCTIONS

In relation to a dispute arising out of an EPC contract and questions as to completion and extension of time, the Technology and Construction Court has refused an application to restrain the employer from making a demand on a performance guarantee. The demand had been properly made and complied with the relevant rules. The contractors were required to establish clearly that the terms of the contract precluded the employer from making the call. A seriously arguable case of breach of the underlying contract was not sufficient. The contractors had not established, in particular, that the liquidated damages clause was an unenforceable penalty, nor that the delay liquidated damages were not due and payable. The injunction was refused.

TTSJV W.L.L. and others v BapCo Refining B.S.C. (Closed) [2026] EWHC 2047 (TCC), 4 August 2026