An emergency arbitrator may be needed where the arbitral tribunal has not yet been appointed or fully constituted and a party to the proceedings wants to obtain an order or an interim award for interim measures to prevent the other party from dissipating evidence or assets, pending the full hearing of the dispute and the final award.
Some institutional arbitration rules permit the appointment of an emergency arbitrator before the arbitration is commenced (that is, before notice of arbitration or the equivalent is filed with the institution). Examples are the ICC Rules, the SCC Rules, the Swiss Rules and the NAI Rules. Other institutions require that the application for an emergency arbitrator is filed concurrently with or after the filing of the notice of arbitration. Examples include the SIAC Rules, the ICDR Rules and the ACICA Rules. Finally, The LCIA Rules permit the appointment of an emergency arbitrator when there is also an application for the expedited formation of the tribunal.
The appointment of an emergency arbitrator does not necessarily preclude a party from seeking the assistance of the relevant national court. All the arbitration rules considered here, save for the LCIA Rules, contain provisions expressly protecting a party’s right to seek the assistance of the national courts or “competent judicial authority” for interim measures or relief.1
However, the requesting party may not want to seek the assistance of a national court because:
(a) It wishes to preserve the confidentiality of the arbitration. (b) It is concerned about the length of time or costs involved in making an application to a national court. (c) It has concerns about the impartiality or competence of the relevant national court.