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Stockholm International Arbitration Review (SIAR) 2008-2
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EMERGENCY AND PRE-TRIBUNAL ARBITRAL
RELIEF: CURRENT APPROACHES
OF THE KEY ARBITRAL INSTITUTIONS∗
Peter Hillerström∗∗
The essential foundation of any arbitration is the parties’ agreement to
arbitrate, whether such agreement has been made before or after the
dispute has arisen. The New York Convention provides that, where such
agreement exists, litigation must be stayed on a party’s application and the
dispute referred to arbitration.1 The general consensus is that the arbitration
process should be autonomous, as it is ‘a process which is supposed to
stand on its own feet’2 with as little external court intervention as possible.
The 2008 PricewaterhouseCoopers’ arbitration survey reports that
corporate counsel ‘perceive arbitration, as a private and independent
system, largely free from external interference’.3 This autonomy of the
arbitration process is endangered, prior to the constitution of an arbitral
tribunal, if parties have no option but to resort to national courts to obtain
preliminary or conservatory relief.
One author identifies a loss of precious confidentiality, infringement of
the ‘parties’ desire for neutrality’ and parties being forced into ‘the forum
they had elected to avoid’ as unattractive side effects of any court
involvement.4 Arbitral institutions have responded by updating their rules
of arbitration; creating new procedures; or speeding up existing ones. Such
methods seek to alleviate the need for unnecessary court intervention. This
article aims to provide an assessment of their relative success, and what
might now be seen as constituting best practice in the area.
It is usual for institutional rules of arbitration to provide for tribunalordered
interim and conservatory relief. Less frequently, arbitral institutions
may offer means to abbreviate standard time frames and key processes
through expedited arbitration. As regards pre-tribunal emergency relief,
arbitral institutions can be broadly classified into two categories. First, a
number of institutions provide for secondary rules that will apply where the
relevant parties have previously agreed on their inclusion. Secondly, a
growing group of institutions have inserted emergency provisions directly
into their flagship rules. It is this latter method that has proved the most
effective in removing both the need for express election and in limiting any
necessary resort to court support and assistance.
Peter Hillerström, BA (Hons), LLB (Hons), Grad Dip ICArb. Clifford Chance, Tokyo. Views are solely the author's. Research for this paper was conducted while the author was an intern at the Arbitration Institute of the Stockholm Chamber of Commerce.
