Songs of Innocence and Experience: Ten Years of Emergency Arbitration – Vol. 27 No. 2

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Authors: Grant Hanessian & E. Alexandra Dosman*

Published: October 2016

Description: Until relatively recently, parties to international arbitration agreements had no recourse to arbitration to preserve the status quo, conserve assets or evidence, or seek other provisional relief until a tribunal had been established in a particular case – a process that, in the best of circumstances, took weeks after submission of a “request for arbitration” or “notice of arbitration.” One of the principal advantages of international arbitration – party participation in the selection of the
decision-maker – precluded the possibility of immediate relief prior to the constitution of a tribunal. To obtain provisional measures in such circumstances, parties were required to resort to national courts.

And thus international disputes that the parties agreed to have resolved by international arbitrators rather than national courts were sometimes effectively decided by a national court’s decision on the request for interim relief. If the court denied the request for interim relief, the applicant might decide that there was no point in commencing or continuing with the arbitration – either because it had no realistic possibility to obtain an effective remedy if it ultimately prevailed in the arbitration or because it was persuaded by the national court’s skepticism about the likelihood it would succeed on the merits of its underlying claims (in most jurisdictions, national courts are required to make some merits evaluation on a request for interim relief). Similarly, if the national court granted the request and commented favorably on the merits of the applicant’s case, the responding party might seek to settle the matter. In such circumstances, the national court had effectively decided the case: international arbitration delayed was quite literally international arbitration denied.

In response to these concerns, and greatly facilitated by universal acceptance of e-mail as a reliable means of communication, over the last ten years most major arbitration institutions have implemented rules and procedures to provide parties…

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*Grant Hanessian is a partner in the New York office of Baker & McKenzie LLP, where he heads the firm’s International Arbitration Group in North America. E. Alexandra Dosman is the Executive Director of the New York International Arbitration Center (NYIAC). The authors wish to thank Juliet Hatchett, an associate with Baker & McKenzie LLP in New York, for her invaluable assistance.