Drafting the International Arbitration Clause: Part Three

Ann Ryan Robertson, Derrick Carson, and David E. Harrell Jr. have published Part Three of a four-part series entitled “Drafting the International Arbitration Clause.” In “Rules for Appointing an Emergency Arbitrator,” the authors discuss obtaining emergency relief in the context of international arbitration.

It has long been the accepted norm in international arbitration that an arbitral tribunal has the jurisdiction to order interim measures relating to the subject matter of the dispute. It also has been long accepted that a party’s request for interim measures addressed to a judicial authority at the seat of the arbitration is neither incompatible with, nor a waiver of, the agreement to arbitrate. The 1976 U.N. Commission on International Trade Law (UNCITRAL) Arbitration Rules enshrined this principle, and all the leading arbitral institution rules contain similar, if not identical provisions.

Given the nature of international arbitration, a party often finds itself in a locale where the local courts, for whatever reason, are not a viable option. In those instances, a party is forced to wait until an arbitral tribunal is in place before seeking interim relief. There is often an urgency component, so waiting is often less than satisfactory. Recognizing this dilemma, the International Centre for Dispute Resolution (ICDR) was the first arbitral institution to provide for the appointment of an emergency arbitrator, and other institutions have followed.

This article explores how the choice between ad hoc and institutional arbitration affects the ability to obtain emergency relief and the procedure for obtaining that relief.

Parts One and Two of this helpful series are available on Corporate Counsel’s website.

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