A common concern about choosing arbitration over litigation is what happens when you need immediate relief. Court litigation has well-established mechanisms for emergency protection: temporary restraining orders and preliminary injunctions that judges can grant within hours or days when a party faces irreparable harm. Arbitration, which traditionally operates on a slower timeline as parties select arbitrators and schedule hearings, might seem ill-suited to emergencies. But modern institutional arbitration rules have largely closed this gap through emergency arbitrator procedures, and the law also preserves important rights to seek provisional relief in court even when the parties have agreed to arbitrate.
Businesses negotiating commercial contracts need to understand their options for emergency and provisional relief before a dispute arises, not after. Once a crisis occurs and your business is facing imminent harm, the wrong dispute resolution clause can leave you scrambling with inadequate tools. Understanding how emergency arbitration procedures work, when courts will grant interim relief notwithstanding an arbitration clause, and how to structure your contract to maximize your access to urgent remedies is essential for any sophisticated commercial operator.
The Problem That Emergency Procedures Solve
Commercial disputes sometimes require immediate legal intervention. A departing executive who is about to share trade secrets with a competitor cannot wait six months for an arbitration hearing. A party that has wrongfully diverted cash from a joint venture account may dissipate those funds before a conventional proceeding concludes. A licensee who has materially breached a license agreement may need to be enjoined from continuing to use your intellectual property now, not after an arbitrator has deliberated for a year. In each of these situations, the availability of rapid legal intervention can determine whether the aggrieved party has any meaningful remedy at all.
Before institutional arbitration rules introduced emergency arbitrator procedures, parties in arbitration agreements who needed emergency relief had only one practical option: go to court and ask for a temporary restraining order or preliminary injunction, arguing that such interim relief was necessary to preserve the status quo pending arbitration. Courts were generally willing to provide this interim relief, recognizing that arbitration agreements do not strip courts of the equitable jurisdiction to protect parties from irreparable harm during the pendency of proceedings. But going to court while also being bound to arbitrate created complications and expense, and some courts were reluctant to grant injunctions in matters they would not ultimately adjudicate.
Emergency Arbitrator Procedures
The major arbitration institutions have responded to the need for expedited relief by creating emergency arbitrator procedures. The AAA, JAMS, and ICDR all have rules providing for the appointment of an emergency arbitrator before the full arbitral tribunal is constituted. These procedures allow a party to seek emergency relief within days of filing a request for arbitration, often far faster than obtaining court intervention in complex commercial matters.
Under the AAA’s Optional Rules for Emergency Measures of Protection, a party in need of emergency relief can file a written application with the AAA requesting appointment of an emergency arbitrator. The AAA appoints an emergency arbitrator, typically within one business day. The emergency arbitrator then schedules a hearing with the parties, receives written submissions, and issues an order within a very short period. The entire process from filing to order can be completed in a matter of days rather than the weeks typically required to obtain a preliminary injunction in court.
JAMS has similar emergency arbitrator provisions in its Comprehensive Rules. The JAMS rules allow a party to apply for emergency relief before an arbitral panel has been constituted, and JAMS can appoint an emergency arbitrator to hear the application on an expedited basis. The ICDR’s international rules also provide for emergency relief, reflecting the international arbitration community’s recognition that cross-border disputes frequently require fast interim protection. The emergency arbitrator’s orders under all of these rules are typically treated as binding interim awards that the parties are required to comply with pending the final arbitration hearing.
Court-Based Interim Relief: The Preserved Right
Despite the availability of emergency arbitrator procedures, the right to seek interim relief in court remains an important safety valve. The prevailing rule in the United States is that an agreement to arbitrate does not waive the right to seek provisional remedies from a court of competent jurisdiction. Courts have consistently held that they retain inherent equitable authority to issue temporary restraining orders and preliminary injunctions in aid of arbitration, meaning that such relief preserves the status quo while the arbitration proceeds rather than resolving the dispute on the merits.
The Federal Arbitration Act itself does not address the right to seek court-based interim relief, but courts have read the statute to permit it. The Ninth Circuit and other circuits have held that allowing parties to seek court-based interim relief while the arbitration proceeds is consistent with the strong federal policy favoring arbitration because it preserves, rather than undermines, the ability to arbitrate the underlying merits. Courts issuing interim relief in aid of arbitration typically include a provision in their order directing the parties to proceed to arbitration on the underlying dispute.
One important consideration is whether your arbitration clause expressly preserves the right to seek court-based interim relief or expressly waives it. Some arbitration clauses explicitly state that either party may seek provisional remedies from a court of competent jurisdiction without waiving the right to arbitrate. Others are silent. A few, particularly in institutional rule sets that provide robust emergency arbitrator procedures, may be read as providing the exclusive mechanism for emergency relief. Ambiguity about whether court relief is available can delay your ability to seek protection in a crisis. Your clause should be explicit.
Types of Provisional and Interim Relief
The types of provisional relief available in both emergency arbitration and court proceedings include injunctions and temporary restraining orders, which prohibit a party from taking specific actions; asset preservation orders, which freeze accounts or prevent the transfer of property; attachment orders, which place a lien on specific assets pending the outcome of the proceeding; and orders preserving evidence, which prevent a party from destroying documents or other materials relevant to the dispute. Not all of these remedies are equally available in all forums, and whether an emergency arbitrator or a court is better positioned to grant any particular type of relief depends on the circumstances.
Injunctive relief is the most commonly sought form of provisional remedy in commercial arbitration. To obtain a temporary injunction, the requesting party typically must demonstrate a likelihood of success on the merits of the underlying dispute, a risk of irreparable harm absent the injunction, that the balance of hardships tips in their favor, and that public policy does not weigh against granting relief. Emergency arbitrators apply similar standards, though the precise criteria vary by institution and arbitrator.
Asset preservation orders are particularly important in international disputes, where a party may fear that the counterparty will move assets out of reach before an award can be enforced. Courts in the United States can issue attachment orders and restraining orders on assets within their jurisdiction, even in connection with international arbitrations. The New York Convention also supports the availability of court-based interim measures in aid of international arbitrations. Structuring your international contracts to preserve access to court-based asset preservation remedies is an important element of cross-border risk management.
Drafting Considerations for Your Arbitration Clause
When drafting the dispute resolution section of a commercial contract, you should address the availability of provisional and emergency relief explicitly. The most straightforward approach is to include a provision stating that either party may seek emergency and provisional relief from the applicable arbitral institution under its emergency procedures and may also seek interim relief from a court of competent jurisdiction without waiving the right to arbitrate the underlying dispute. This language preserves maximum flexibility.
Consider whether your chosen institution’s emergency arbitrator procedures are sufficiently robust for your business’s needs. The AAA and JAMS both have solid emergency procedures, but they differ in timelines and procedural details. If you anticipate that the types of disputes most likely to arise will require injunctive relief on very short notice, review the emergency procedures of your chosen institution carefully and satisfy yourself that they are workable for your situation. If they are not, a clause preserving court access may be particularly important.
For international contracts, the availability of provisional remedies is an even more pressing concern. Emergency arbitration procedures may not produce orders that courts in other countries are compelled to enforce, at least not as quickly as a directly obtained court order from a court in the relevant jurisdiction. Including a provision that permits either party to seek interim protection from courts of competent jurisdiction, including courts in jurisdictions where assets may be located, gives you more tools to protect your interests in a global emergency.
Finally, think about the relationship between your arbitration clause, your governing law clause, and your venue clause. Courts asked to grant provisional relief in aid of arbitration will apply their own procedural law and local rules, and the governing law of the contract may or may not determine the standard for injunctive relief. Understanding the interplay between these provisions before a crisis arises, and ideally mapping out the path to emergency relief in advance, puts your business in the best possible position when a genuine emergency occurs.
Practical Tips for Managing Arbitration Emergencies
Preparation before a dispute arises is the most important factor in successfully obtaining emergency relief. Businesses should identify, in advance, what types of emergencies are plausible under each of their major commercial contracts. For each plausible emergency, identify whether emergency arbitration procedures, court-based provisional relief, or both are available and appropriate. Have counsel prepared to move quickly. Emergency arbitration applications and temporary restraining order motions require fast, sophisticated lawyering, and the time to find and prepare counsel is before the emergency, not during it.
Document your facts carefully when a potential emergency is developing. Emergency arbitrators and courts will assess your application on the strength of the factual record you present. Clear, well-documented evidence of the harm you face and the urgency of the situation materially affects your chances of obtaining relief. Businesses that have robust document management practices and that preserve communications and records carefully are better positioned to meet this standard.
Understand that emergency relief is interim by nature. A temporary restraining order or an emergency arbitration order is not a final resolution of your dispute. It buys you time and preserves the status quo while the substantive proceeding moves forward. After obtaining emergency relief, you still need to pursue the underlying arbitration, comply with any bond or undertaking requirements associated with the injunction, and ultimately obtain a final award on the merits. Emergency relief is the beginning of the dispute resolution process, not the end.