Originally from The American Review of International Arbitration (ARIA)

PREVIEW

ABSTRACT

International commercial parties often include an arbitration clause in their contracts. When they do, they generally do not even conceive of the arbitral tribunal that will eventually decide their disputes. The tribunal is not permanently available but comes to life only once a party files a request for arbitration. Even more, it finds its raison d’être in party autonomy, which is why it cannot exert the sovereign power reserved for state courts. Both circumstances appear as conceptual deficits that let the arbitral venue seem ill-equipped to answer a party’s request for interim relief. First, constituting the tribunal takes time. Second, any measure it orders is enforceable only subject to court approval. However, attempts to mitigate both deficits have gained momentum in arbitration law reforms around the globe. Legislators seeking to bolster emergency arbitrator proceedings and streamline enforcement regimes have uncovered considerable potential to fulfill arbitration’s promise: Being a one-stop shop that covers requests for interim as well as final protection.

I.   AN INTRICACY OF ITS OWN: INTERIM RELIEF GRANTED BY TRIBUNALS

When a party to an arbitration agreement contemplates requesting an interim measure of protection, it faces two options: File such request with the arbitral tribunal or the state courts. The latter generally maintain jurisdiction for matters of interim relief even when the dispute is subject to an arbitration agreement. The party’s deliberation must include a sober assessment of the two conceptual deficits that the process of obtaining interim relief from a tribunal is flawed with: First, a tribunal must be available to grant relief. Because constituting the tribunal can take multiple weeks, it appears incapable to grant immediate protection.  Second, the tribunal’s orders are not self-executing but must—just like an award—be declared enforceable by a court. That may undermine the prospect of legal protection, depending on the functionality of the applicable enforcement regime, but in any event will add further delay. These two deficits are conceptional in the sense that they are rooted in the system of arbitration. Interim relief has thus been described as the “Achilles’ heel” of international arbitration,  marking it as the weak point in an otherwise successful and well-functioning means of dispute resolution.

Current reassessments of arbitration laws address these deficits by proposing to institute an emergency arbitrator who bridges the gap until the tribunal is constituted, and by enacting comprehensive regimes for the enforcement of tribunal-ordered interim measures. The German government has recently introduced a Draft Bill into parliament which considers interim relief in particular.  In the United Kingdom, the new Arbitration Act 2025, which has recently received royal assent, includes new rules on emergency arbitrator proceedings.  In March 2025, the Working Group for the Reform of French Arbitration Law published its report on possible changes in the law, proposing to adopt a consolidated arbitration code encompassing a new provision to govern the enforcement of arbitral interim relief (Art. 41).  These developments inspire to examine the status quo of interim arbitral relief, and how legislative change can equip it with more vigor. Two other blueprints of a reform are noteworthy, namely the UNCITRAL Model Law in its revised 2006 version and the Restatement of U.S. arbitration law.  We turn first to the concept of granting interim relief in arbitration with a particular focus on the intricate interplay between courts and tribunals (II). This paves the way to assess improvements to the rules on the enforcement of tribunal-ordered measures (III). Last, we will look at the difficult relationship between arbitration law and the emergency arbitrator, especially regarding the role of courts in enforcing emergency orders and aiding the emergency proceeding (IV).