U.S. federal and state court judges have the power to grant various forms of temporary, preliminary and interim relief to protect court litigants during the course of a lawsuit, such as TROs, preliminary injunctions and attachments. However, when international parties seek to resolve a dispute through international arbitration, arbitrators and arbitral tribunals have, until recently, been hampered in providing the same level of emergency relief. As a consequence, arbitration clauses in agreements governing international transactions often contain provisions allowing the parties to apply to courts for interim or preliminary relief. However, at least two international arbitration institution, the American Arbitration Association and its related International Center for Dispute Resolution, and the International Chamber of Commerce, have adopted procedural rules which provide for the granting of “emergency relief” to a party by way of an “emergency arbitrator.” These rules are found, respectively, in Article 37 of the ICDR’s International Dispute Resolution Procedures and Article 29 of the ICC’s Rules of Arbitration, including the Emergency Arbitrator Rules found in Appendix V of the ICC Rules. These provisions have the potential to do away with resorting to the courts, in the first instance, when a party to an international arbitration needs emergency relief such as TROs and attachments.
International arbitration is one of the leading methods for the resolution of commercial disputes between parties from different countries and legal systems, particularly disputes arising out of or based upon contracts. International arbitration offers many potential advantages, including the availability of a neutral forum, the ability to choose the arbitrator (including those with requisite knowledge of the relevant industry or technology), the ability to specify the applicable law and procedures, more readily enforceable awards and confidentiality.
