As a young lawyer in New York some years ago, I became quite familiar with 28 U.S. Code section 452: “All courts of the United States shall be deemed always open for the purpose of filing proper papers, issuing and returning process, and making motions and orders.” In the days prior to electronic filing of court papers, this statute, in combination with a time-stamp machine and drop box in the lobby of the federal courthouse at Foley Square, permitted commencement of a case or filing of other pleadings or submissions at the very last moment on the day the papers were due. The statute still provides the legal basis for lawyers (mostly in the movies, one suspects) to turn up at judges’ homes after hours seeking to have time-sensitive orders signed.
The statute also underscores what has long been a fundamental difference between national courts and international arbitration: until very recently international arbitrators were not “always open” for business. In fact there could be no “international arbitration” until a tribunal was established in a particular case—a process that in the best of circumstances takes some weeks after submission of a “request for arbitration” or “notice of arbitration.” If a party to an international arbitration agreement required immediate relief to preserve the status quo or conserve assets or evidence prior to the constitution of a tribunal, it had no choice but to go to a national court.
And thus international commercial disputes that the parties had previously agreed —presumably for many good and considered reasons—to have resolved by international arbitrators rather than national courts, were sometimes effectively decided by a national court’s decision on the request for interim relief.