_standards for provisional relief and their implementation in emergency arbitration
In international arbitration, the ability to obtain provisional relief can be decisive. Parties often need urgent protection before the arbitral tribunal is constituted and a final award is rendered. To address this gap, most leading arbitral institutions offer emergency arbitration, enabling parties to seek immediate interim measures.
What Is Provisional Relief?
Provisional relief (also called interim measures) consists of temporary orders designed to safeguard a party’s rights until the tribunal decides the dispute on the merits. Typical examples include:
- preserving assets,
- maintaining the status quo, or
- preventing the dissipation of evidence.
General Standards Applied
While institutional rules differ slightly, arbitral practice shows that requests for provisional measures—whether before a regular tribunal or an emergency arbitrator—are assessed against well-established international standards. These generally include:
1. Serious or Irreparable Harm
The applicant must show a real risk of harm that cannot be adequately compensated by damages later. “Irreparable” does not necessarily mean impossible to repair; tribunals often look for substantial or grave harm that would unfairly prejudice a party during the proceedings.
2. Urgency
Interim relief must be necessary immediately. The applicant must demonstrate that the harm is imminent and cannot wait until the full tribunal is in place. This urgency is at the core of emergency arbitration.
3. No Prejudgment of the Merits
Emergency measures must not pre-empt the tribunal’s final decision. While arbitrators may consider whether the applicant has a plausible case, the assessment is strictly provisional and has no binding effect on the final award.
4. Prima Facie Case and Jurisdiction
Tribunals often require a prima facie showing that the applicant’s case has some legal merit and that the tribunal has jurisdiction. This limited inquiry helps prevent misuse of emergency powers.
5. Balancing of Hardships
Arbitrators frequently weigh the harm faced by the applicant against the burden imposed on the respondent. Interim measures are more likely if the applicant’s potential harm clearly outweighs the respondent’s.
Emergency Arbitration in Practice: Are the Standards Lower?
In emergency arbitration, the established standards for provisional relief are applied in an expedited fashion. Because proceedings are compressed, with short timelines and limited submissions, arbitrators tend to focus on urgency and the need to preserve the status quo until the full tribunal is constituted. This ensures that neither party secures an unfair advantage before the case can be properly heard.
The ICC’s Emergency Arbitrator Provisions (Article 29 and Appendix V of the 2021 ICC Rules) illustrate this approach by requiring that the requested relief “cannot await the constitution of an arbitral tribunal.” This makes the admissibility test stricter. However, once admissible, emergency arbitrators often adapt the intensity of their review to the realities of the procedure.
Experience confirms this. The ICC Commission’s review of the first 80 emergency cases revealed that relief was granted only in a minority of applications. Emergency arbitrators scrutinized urgency and irreparable harm very strictly, yet showed greater flexibility regarding evidentiary standards. Since orders must be issued within 15 days, extensive factual development is not always feasible.
As a result, emergency arbitrators sometimes accept a lower evidentiary threshold than tribunals deciding interim measures at a later stage. Applicants typically need to make only a prima facie showing, not a fully proven case. This pragmatic approach strikes a balance between speed and fairness: it provides protection of rights without prejudging the merits.
Examples from ICC practice include:
- preserving the status quo until the tribunal is formed, even without detailed witness evidence;
- document-only proceedings in urgent cases, echoing the ICC’s expedited procedure rules.
Taken together, these developments show that while the core criteria—urgency, harm, and proportionality—remain unchanged, the depth of assessment is lighter in emergency arbitration, reflecting the compressed timetable and need for swift action.
Conclusion
Emergency arbitration is not about lowering the legal bar, but about adjusting it to urgent realities. The ICC’s experience shows that emergency arbitrators apply the same fundamental principles as regular tribunals but with a more flexible and pragmatic evidentiary approach. Parties should therefore expect strict scrutiny of urgency and harm, while benefiting from a lighter standard of proof given the accelerated procedure.
Contact:
Koray Dagdeviren, Lawyer (TR), Of Counsel