In JKD and anor v IKC,[1] the English High Court dismissed a challenge under section 68 of the Arbitration Act 1996 to an arbitral Order refusing to restrain a call on a bond. This is another important case because it reinforces the thinking that section 68 challenges apply only to Awards (not arbitral Orders) and to interim measures. As we have seen in a number of cases around various jurisdictions, JKD also highlights the broad discretion and power available to arbitral tribunals in respect of interim applications to restrain calls on bonds.

Context

The dispute involved two parties to an EPC Contract. The contractor (JHA) terminated the Contract citing force majeure provisions. The following day, the employer (IKC) made a call on the bonds whilst disputing the validity of termination. The section 68 application arose as a consequence of the bond call, pursuant to the wider dispute around termination:

• JHA restrained the bond call in the Spanish courts against Santander who issued the bonds, effective only in Spain.

• Pursuant to an undertaking in the Spanish court, JHA commenced arbitration proceedings against IKC under the EPC Contract (ICC Rules, London Seat).

• IKC issued proceedings against Santander in the English High Court seeking payment under the bonds. JHA’s application to intervene on the basis that they were the interested party was refused.

• JHA applied to the arbitral tribunal for interim measures, seeking a restraint on IKC from making any further calls on the bonds, which was refused by the tribunal.

• The current application to the English High Court sought to set-aside the arbitral tribunal’s ruling, on the grounds of serious irregularity.

The High Court’s Thinking

Dias J refused the section 68 challenge, on the grounds that the arbitral tribunal had issued an Order which was not an Award, or alternatively that neither sections 68(2)(b) nor 68(2)(c) applied to challenge the arbitral tribunal’s powers to grant interim measures.

The “Award” Issue

Section 68 gives a party the power to “apply to the court challenging an award”[2] (emphasis added). The guidelines for the definition of an award were summarised in ZCCM Investment Holdings plc v Kansanshi Holdings plc.[3] The question for Dias J was whether a refusal of interim measures constituted an Award or an Order. The Court held it to be an Order: the decision was given as a Procedural Order by the arbitral tribunal; the Order did not determine any substantive relief or make pre-judgement on the merits; the arbitral tribunal was not functus officio since it could still find IKC’s call on the bond was unlawful (and compensate JHA through damages).[4]

IKC’s argument that refusal to restrain the call substantively determined the allocation of risk was rejected on the grounds that this was a matter of construction, which the tribunal expressly refused to determine at this stage in the arbitration. The Court was of the view that any commercial risk JHA might suffer as a result of the Order was part of the balance of hardship in the tribunal’s discretion for deciding interim measures, and not a substantive determination of the right to call the bond.[5]

The “Interim Measures” Issue

In the alternative, Dias J found no serious irregularity for the purposes of a section 68 challenge. Under Article 28 of the ICC Rules 2021, the arbitral tribunal has broad discretionary powers to determine interim measures “unless the parties have otherwise agreed”.[6] JHA’s argument that there was an agreement prescribing the test to determine interim measures for the purposes of Article 28 failed. Dias J said that even if an agreement had been established, it would still not trigger section 68.

Under section 68(2)(b), serious irregularity arises if the arbitral tribunal “exceed[s] its powers”. However, regardless of which test applied to interim measures, this did not change the existence of the tribunal’s discretionary power. Any question as to which test applied was a question of law which is not open to challenge. Dias J held that the best JHA could show was “an erroneous exercise of a power which the Tribunal undoubtedly possessed” – even this was described as “something of a mischaracterisation“.[7]

Under section 68(2)(c), serious irregularity arises where the tribunal fails to “conduct the proceedings in accordance with the procedure agreed by the Parties”. Again, Dias J found that the principles to be applied to an application for interim relief was a matter of substantive law, even if interim relief itself was generally a procedural matter.[8]

Our Thoughts

The caselaw continues to show that interim measures will rarely be the subject of a successful challenge under section 68. Such measures will generally not possess the finality required to be an award, given they are not designed to determine substantive issues. Section. 68 is a “longstop provision”[9] which only applies in exceptional circumstances.[10]

It is implicit in the judgement that different standards apply to an application to restrain a bond call in arbitration, relative to the High Court. The very recent case of TTSJV W.L.L. v BapCo Refining B.S.C reaffirms the position of the High Court in respect of restraining a bond call.[11] In contrast, tribunals are guided by arbitral rules, which tend to give broad discretionary powers to order interim measures.[12] In the current case, the arbitral tribunal applied an “enhanced merits threshold” whereas JHA argued they should have applied a “prima facie merits threshold”. Readers should note that, importantly, all options were open to the arbitral tribunal under the discretionary power.[13] In contrast, in the High Court, Pepperall J specifically rejected the argument that bond calls could be restrained where there is a “seriously arguable case”.

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^[1] [2026] EWHC 2031 (Comm) (JKD).

^[2] Section 68(1), Arbitration Act 1996.

^[3] [2019] EWHC 1285 (Comm), at [40]. Quoted with approval, at JKD (n. 1), at [17].

^[4] JKD (n. 1), at [19].

^[5] Ibid, at [21] to [23].

^[6] Article 28(1) of the ICC Rules, 2021. In the new ICC Rules, 2026, this provision is unamended as Article 29(1).

^[7] JKD  (n. 1), at [52].

^[8] Ibid, at [55].

^[9] JKD (n. 1), at [30].

^[10] See, “Challenging Arbitral Awards in England & Wales – Section 68 Serious Irregularity” (23 June 2026)

^[11] [2026] EWHC 2047 (TCC); See, “Bond Calls in London – the Latest Thinking” (5 August 2026)

^[12] See, for example, Article 29 of the ICC Rules, 2026; Rule 45 of the SIAC Rules, 2025; Article 23 of the HKIAC Rules, 2024; Article 25 of the LCIA Rules, 2020.

^[13] JKD (n. 1), at [33].