Esshaki Legal Media TeamCurrent as of September 2023
Where urgent relief is needed before the tribunal is constituted, two routes are
available.
Emergency arbitrator procedures under most institutional rules: an emergency
arbitrator appointed within a day or two, deciding an application within a short
period, with the order binding on the parties and subject to reconsideration by
the tribunal once constituted.
Court applications. Most arbitration statutes and institutional rules
preserve the right to seek interim relief from a court without waiving the
arbitration agreement. The arbitration clause should say so expressly to avoid
an argument that the application waived arbitration.
Which to use. Courts have contempt powers and can bind third parties;
emergency arbitrators cannot. Where the relief requires enforcement against a
bank, a registrar or another non-party, the court is the only effective route.
Enforceability of emergency awards. Uncertain in some jurisdictions, since
they may not be final awards for convention purposes. Where enforcement will be
needed abroad, that uncertainty argues for a court.
Standards. Broadly similar to court standards — a serious question, urgency,
irreparable harm and the balance of convenience — though tribunals apply them
with less formality.
Security may be ordered as a condition, and undertakings are commonly
required.