Emergency and Pre-Tribunal Arbitral Relief: Current Approaches of the Key Arbitral Institutions - SIAR 2008-2
Peter Hillerström, BA (Hons), LLB (Hons), Grad Dip ICArb. Clifford Chance, Tokyo. Views are solely the author's. Research for this paper was conducted while the author was an intern at the Arbitration Institute of the Stockholm Chamber of Commerce.
Originally from: Stockholm International Arbitration Review
EMERGENCY AND PRE-TRIBUNAL ARBITRAL RELIEF: CURRENT APPROACHES OF THE KEY ARBITRAL INSTITUTIONS
The essential foundation of any arbitration is the parties’ agreement to arbitrate, whether such agreement has been made before or after the dispute has arisen. The New York Convention provides that, where such agreement exists, litigation must be stayed on a party’s application and the dispute referred to arbitration. The general consensus is that the arbitration process should be autonomous, as it is ‘a process which is supposed to stand on its own feet’ with as little external court intervention as possible. The 2008 PricewaterhouseCoopers’ arbitration survey reports that corporate counsel ‘perceive arbitration, as a private and independent system, largely free from external interference’. This autonomy of the arbitration process is endangered, prior to the constitution of an arbitral tribunal, if parties have no option but to resort to national courts to obtain preliminary or conservatory relief.
One author identifies a loss of precious confidentiality, infringement of the ‘parties’ desire for neutrality’ and parties being forced into ‘the forum they had elected to avoid’ as unattractive side effects of any court involvement. Arbitral institutions have responded by updating their rules of arbitration; creating new procedures; or speeding up existing ones. Such methods seek to alleviate the need for unnecessary court intervention. This article aims to provide an assessment of their relative success, and what might now be seen as constituting best practice in the area.
It is usual for institutional rules of arbitration to provide for tribunalordered interim and conservatory relief. Less frequently, arbitral institutions may offer means to abbreviate standard time frames and key processes through expedited arbitration. As regards pre-tribunal emergency relief, arbitral institutions can be broadly classified into two categories. First, a number of institutions provide for secondary rules that will apply where the relevant parties have previously agreed on their inclusion. Secondly, a growing group of institutions have inserted emergency provisions directly into their flagship rules.