Originally from European International Arbitration Review

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I.    Introduction

Before the adoption of rules providing for emergency arbitrators, a party seeking emergency relief prior to the permanent arbitral tribunal being constituted could only petition a court which, ironically, was the venue the parties had sought to avoid through arbitration.  While courts in some instances provide an efficient, fair, and effective remedy, in other instances they may be biased against a foreign or private party, inefficient, slow or even corrupt, or unable to grant the requested relief.

Additionally, unlike arbitral proceedings, court proceedings are not ordinarily confidential.  As a result of these issues, the need for arbitral rules that allow emergency relief prior to the permanent tribunal being constituted was gradually recognized.

The ICC pre-arbitral referee rules, issued in 1990, were the earliest example of a provision specifically providing for interim relief prior to the establishment of the tribunal.   However, the parties were required to specifically agree to the application of the pre-arbitral rules in their contract.  There were also questions as to the scope of available relief and the enforceability of orders under those rules. While the ICC rules were recognized as a ground breaking innovation by the arbitration community, comprehensive and effective emergency arbitrator rules were not adopted by other arbitral institutions for more than a decade.