Emergency Arbitration: A Maturing and Evolving Procedure

Abstract

THE CONTEXT OF INTERIM RELIEF IN ARBITRATION

Interim relief and the possibility of recourse to proceedings for interim relief is an important aspect of commercial dispute resolution. In cases concerning, for example, industrial action, intellectual property, rights to ownership of, for example, shares, bank guarantees or other security under a contract, or simply the right to payment under a contract, and many more varied circumstances, interim relief can be crucial to preserve assets against dissipation or otherwise safeguard a factual or legal situation in anticipation of a final ruling on the merits. The main and traditional purpose of interim relief is to ensure that enforcement of rights remains possible once a final ruling on the merits is rendered. Thus, interim relief is classically considered to have a conservatory and protective nature and not intended to formally resolve a dispute. However, the purpose has been strategically broadened in many jurisdictions to encompass also a wider pallet of aims and parties also use interim relief strategically for many reasons. These broader aims can for example include to secure evidence or to achieve a de facto summary resolution of the dispute. The critical importance for the parties of interim relief, as well as the strategic power it entails, coupled with the inherently provisional nature of the relief renders it potent but also open to abuse. Thus, it is important that the procedural rules and judicial practices support a well-balanced approach to interim relief, including necessary safeguards.