Interim and Emergency Relief in Arbitration Proceedings
Schwartz, Ira M., Dispute Resolution Journal
A look at the law, arbitration rules, and UNCITRAL Model Law provisions on the issue of interim relief in arbitration, as well as the issue of court enforcement.
Although arbitration offers many benefits to disputants- among them a quicker, less formal and less costly resolution than litigation, the ability to select the decision maker, and privacy-some people erroneously believe that one cannot obtain interim relief in arbitration. The ability to obtain such relief, for example a preliminary injunction, can be highly significant in certain kinds of disputes, especially those involving protection of intellectual property rights.
This perception is wrong because the major institutional arbitration providers do in fact allow for interim relief in arbitration. Although the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration previously had very limited provisions on interim relief, the Commission recently amended the Model Law to allow for stronger interim relief.1 The International Centre for Dispute Resolution (ICDR), the international arm of the American Arbitration Association (AAA), recently incorporated into its rules a provision allowing parties to obtain emergency relief from an emergency arbitrator before the arbitrator is selected to hear the dispute.2 The International Chamber of Commerce (ICC) has a separate pre-arbitration procedure for a referee to hear urgent requests for relief, but this procedure has to be expressly stated in the parties' arbitration agreement.3
However, orders for interim relief and emergency orders are not self-enforcing. Thus, there is a concern over whether such orders will be enforced in a meaningful manner.
When Interim Relief Will Be Sought
A preliminary injunction or other type of interim relief is usually sought by a party who believes it will suffer imminent harm due to an irreparable alteration of the status quo. Examples include the adversary's continued violation of copyright or patent rights or misappropriation of trade secrets; danger to party property in the custody of the adversary; and danger that the adversary will dispose of its own property, leaving the party without a meaningful chance of recovery in arbitration.
The UNCITRAL Rules and Interim Relief
Article 26 of the UNCITRAL Rules on International Commercial Arbitration (1976) allowed the arbitration panel to grant a request for interim measures in appropriate circumstances.4 Because the availability of interim relief had become a major issue, the UNCITRAL formed a working group to study that issue. In 2006, it added a new chapter to the UNCITRAL Model Law,5 which deals with interim relief and a new form of relief called a "preliminary order." It contains detailed provisions on the type of relief, the conditions for obtaining it, and related matters.
Article 17(1) expressly allows the arbitrator to grant interim measures at the request of a party, unless parties agree otherwise. Article 17(2) defines the term "interim measure" to mean a temporary measure that has one or more of the following purposes: to preserve either the status quo, assets from which the final award may be satisfied, or evidence, or protect the arbitration proceeding.
Article 17A sets out the conditions the moving party must meet in order for the panel to grant a request for an interim measure of protection. Basically, this standard is similar to the one U.S. courts use to rule on requests for a preliminary injunction. That is, the party requesting interim relief has to show that it will suffer irreparable injury if the relief is not granted, as well as a reasonable possibility of success on the merits of the claim. However, the tribunal has discretion to apply requirements when interim measures these two requirements when interim measures are requested for the purpose of preserving evidence.
Article 17B provides for an earlier type of relief analogous to a temporary restraining order under U. …