Before running off to Court to file an emergency request for a temporary restraining order or a preliminary injunction, counsel should consider whether the same relief can and should be sought from an arbitral institution. Start with review of the agreement at issue and its dispute resolution clause; you may find that it provides a preferable alternative to Court. Effective procedures for emergency interim relief are provided by the rules of leading arbitral institutions of the world, including the International Chamber of Commerce (ICC), The London Court of International Arbitration (LCIA), the International Centre for Dispute Resolution of the American Arbitration Association (ICDR) and others.
For instance, Article 37 of International Arbitration Rules of the ICDR sets forth procedures for “Emergency Measures of Protection,” which apply to arbitrations conducted under arbitration clauses or agreements entered on or after May 1, 2013. Within one day of receipt of a notice that emergency relief is requested, the ICDR will appoint a single emergency arbitrator from a special panel of arbitrators designated to rule on emergency applications. The parties then have one day to challenge the appointment. An emergency arbitrator is authorized to rule on her/his own jurisdiction, and other jurisdictional matters under Article 15 of the ICDR Rules, including the validity of the contract of which an arbitration clause forms a part and other issues pertaining to the arbitrability of a claim.
Within two days of her/his appointment, the emergency arbitrator will establish a schedule for consideration of the application for emergency relief. After providing a reasonable opportunity for the parties to be heard, the emergency arbitrator may order or award any interim or conservancy measures the emergency arbitrator deems necessary – including injunctive relief. He or she must give reasons for the award – and may modify or vacate the award for good cause shown. After the tribunal is constituted, the emergency arbitrator has no further power to act. The tribunal may reconsider, modify or vacate the award or order of emergency relief entered by the emergency arbitrator.
The circumstances of each case are unique. Counsel may conclude that a motion for emergency or temporary relief should be brought in federal or state court. Resort to the courts is generally not deemed incompatible with an agreement to arbitrate nor is it considered a waiver of the right to arbitrate. In many cases, counsel may feel more comfortable predicting how a local judge, as opposed to an emergency arbitrator, may respond to an urgent request for relief. That assessment can turn the decision in any direction. The availability of emergency relief is thus just another tool in counsel’s kit.
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