International arbitration is designed for deliberateness — it takes months to constitute a tribunal, appoint arbitrators, and begin substantive proceedings. But some disputes require immediate action: a counterparty threatening to dissipate assets, a breach that will cause irreparable harm if not stopped, a confidential disclosure that must be prevented before it occurs.
The emergency arbitrator procedure, now incorporated into the rules of the ICC, ICDR, JAMS, and other institutions, provides a fast-track arbitral process for urgent relief. Understanding how it works — and when to use it instead of court-ordered interim measures — is essential preparation for any party with active cross-border contracts.
The Problem: Urgent Relief in a Slow Process
The traditional response to a dispute requiring immediate action was to seek interim relief from a national court — even in an arbitration agreement context. Courts in most major arbitration jurisdictions will grant interim measures in support of arbitration proceedings, and doing so does not waive the right to arbitrate. But seeking court-ordered relief has disadvantages: it requires litigating in a court you may not know, in a country you did not choose, under procedural rules you did not agree to.
The emergency arbitrator procedure addresses this gap. It provides access to a decision-maker who operates within the same institutional framework as the main arbitration, can issue binding orders on an accelerated timeline, and does not require the party to navigate an unfamiliar court system.
How the Emergency Arbitrator Procedure Works: ICC
Under the ICC Rules (Article 29 and Appendix V), a party in urgent need of interim measures may apply to the ICC Secretariat for the appointment of an emergency arbitrator before the main arbitration request is filed or simultaneously with it. The application must include a description of the circumstances giving rise to the application, the interim measures requested, and the reasons why the measures cannot await constitution of the arbitral tribunal.
The ICC Secretary General appoints the emergency arbitrator within two days of receipt of the application, assuming the prima facie requirements are met and the applicable institutional rules allow it. The emergency arbitrator then sets a schedule for submissions — typically very compressed, sometimes measured in hours — and issues an order within 15 days of receiving the case file.
The emergency arbitrator's order is binding on the parties but is not a final award. It can be modified by the main arbitral tribunal once constituted, and it terminates if the main arbitration is not commenced within the time limits set by the ICC Rules.
How the Emergency Arbitrator Procedure Works: ICDR
The ICDR (the international arm of the AAA) provides an emergency measures procedure under Article 7 of the ICDR International Dispute Resolution Procedures. The ICDR appoints an emergency arbitrator within one business day of receipt of an application. The emergency arbitrator has the power to order or award any interim or conservancy measure deemed necessary, including injunctive relief.
The ICDR emergency arbitrator procedure is available for all ICDR cases unless the parties have opted out. Like the ICC procedure, it produces an order that is binding pending constitution of the tribunal, which may modify, suspend, or terminate the emergency measures once seated.
Enforcement of Emergency Arbitrator Orders
Emergency arbitrator orders are not conventional arbitral awards and therefore do not fall automatically under the New York Convention framework for enforcement. Courts in different jurisdictions have taken different approaches to enforcing these orders — some treating them as enforceable interim awards, others requiring a parallel court application for enforcement.
In the United States, courts have generally been willing to enforce emergency arbitrator orders where the arbitration agreement is valid and the party resisting enforcement cannot demonstrate a compelling reason not to. The Southern District of Florida and other federal courts have increasingly applied the same FAA framework to interim orders that they apply to final awards, though the case law continues to develop.
Practitioners should anticipate that a recalcitrant party will resist enforcement and prepare to seek confirmation of the emergency order in federal court promptly after it is issued. Delay between the order and the confirmation petition can undercut the urgency argument and allow the opposing party to accomplish the very harm the order was meant to prevent.
When to Use Emergency Arbitration vs. Court-Ordered Interim Relief
Emergency arbitration is appropriate when: (1) the arbitration agreement is in a contract with a clear institutional clause incorporating emergency rules; (2) the counterparty is subject to the jurisdiction of the arbitral institution; (3) the relief sought is the kind an arbitral tribunal can order — injunction, asset freeze, order to preserve evidence; and (4) the enforcement landscape favors an arbitral order over a court order, for example when the assets are in a jurisdiction where courts are slow or unreliable.
Court-ordered interim relief remains the better option when: (1) the arbitration agreement is unclear or its validity is in dispute; (2) the emergency arbitrator procedure is not available under the applicable rules or has been opted out; (3) assets are held in a jurisdiction that enforces court injunctions efficiently but may not honor an arbitral interim order; or (4) the urgency is so extreme that even the 15-day ICC timeline is too slow.
In many situations, parties pursue both tracks simultaneously — filing an emergency arbitration and seeking a temporary restraining order from a court — on the theory that at least one mechanism will provide relief in time. The two tracks are not mutually exclusive, and most institutional rules expressly preserve the right to seek court-ordered measures notwithstanding an emergency arbitration application.
Practical Preparation
Emergency applications succeed when they are prepared before they are needed. A party that discovers it has an emergency on a Monday afternoon and needs an ICC emergency arbitrator by Wednesday does not have time to build the application from scratch. Practitioners advising clients with active cross-border contracts should consider the scenarios that might require emergency relief and prepare template applications in advance.
The most important elements of a successful emergency application are: a clear factual record of the urgency; evidence that the harm will occur before a tribunal can be constituted; a proposed order that is specific and enforceable rather than an open-ended injunction; and a showing that the applicant has not delayed in seeking relief. An applicant who waited weeks before filing an emergency application will face skepticism about the urgency of the relief requested.