Originally from The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration, Fifth Edition

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Arbitrated disputes often involve requests for preliminary relief, such as a temporary restraining order, preliminary injunction, attachment, security, pre-award garnishment, replevin, or the appointment of a receiver. The nature and availability of such relief in domestic arbitration typically depend on the parties’ agreement and state or federal law. This chapter discusses emergency and interim relief in the domestic context; chapter 18 discusses such relief in international arbitrations. Related aspects are discussed in the chapters on interlocutory decisions, chapter 10, and awards, chapter 13. Experienced trial lawyers may be generally familiar with these concepts, but both transactional lawyers and trial lawyers, when serving as arbitrators, can find that a number of emergency remedies have a special twist in arbitration. The area has been developing rapidly, including new forum rules and by adoption of the Model Revised Uniform Arbitration Act.

The parties may have a choice whether to seek emergency or interim relief in arbitration or by an application in court “in aid of” arbitration. Typically, an arbitrator or arbitral tribunal will have no role in that choice. On occasion, though, there may be a related jurisdictional question that is delegated to the arbitrators. When faced with requests for emergency or interim relief raised in domestic arbitration, it is important at all stages for the arbitrator to work with the parties, attempting, as far as possible, to achieve agreement on the appropriate process, including the applicable law, the appropriate briefing, and the form of the hearing and of the resulting order or award.

I.            TYPES OF RELIEF OFTEN REQUESTED

At the outset, it is worth noting the most commonly requested forms of interim measures.  These include:

   Temporary Restraining Order (TRO): issued to prevent irreparable harm likely to occur before notice and a full hearing is possible, sometimes where notice might moot the relief requested. Sometimes a court may issue a TRO ex parte.  There is support for an emergency arbitrator to do so only in the CPR Rules.

   Preliminary Injunction: issued on notice with hearing to prevent irreparable harm that would occur before a full trial; the order may mandate action or prohibit action;

   Attachment: order for court to take possession or control of property, often preceded by restraints against transfer or dissipation;

   Security: order for funds or equivalent to be held by court or guaranteed by bond agent based on, and pending, specific conditions.

II.           EMERGENCY ARBITRATORS

Most arbitration rules provide for a process by which parties may obtain emergency relief before the arbitral tribunal is constituted. Such rules generally are intended to allow the parties seeking to avoid immediate and sometimes irreparable damage to select an arbitrator to decide an appropriate remedy when the tribunal is not yet constituted, rather than being forced to seek judicial relief. See AAA Rule R-39(e); JAMS Rule 2(c)(iii). The same rules often provide that filing an application for court-ordered emergency relief does not vitiate the parties’ agreement to arbitrate. See, e.g., AAA Rule R- 39(h); CPR Non-Admin. Rule 14.12. See also JAMS Rule 24(e) (generally providing—without specifically mentioning emergency arbitrators—that “recourse to a court for interim or provisional relief shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate”).

AAA and JAMS introduced rules pertaining to emergency relief in the mid-2010s. Relatively few courts have reviewed an emergency arbitrator’s actions since then. Consequently, case law provides limited guidance on how to resolve procedural issues that can arise in connection with emergency arbitral proceedings. This section identifies many of those issues and discusses best practices for emergency arbitrators serving in domestic arbitration.  Arbitrators who desire to serve as emergency arbitrators must be prepared to perform a variety of managerial duties and to reach their decisions very quickly.