Ms Arbitrator, we need an urgent decision!

Stefano Modenesi
DLA Piper Studio Legale Tributario Associato
Stefano.Modenesi@dlapiper.com

A highlight of the IBA Annual Conference in Mexico City was a panel discussion of whether, when it comes to seeking urgent interim relief, recourse to national courts remains a valid alternative to opting for emergency arbitration or expedited arbitration procedures under institutional arbitration rules. The panel was jointly organised by the IBA Arbitration and Litigation Committees and held on 20 September 2024. 

The session was moderated by Patricia Saiz (Vice Chair of the IBA Arbitration Committee and arbitrator at Saiz Arbitration in Madrid, Spain) and André de A Cavalcanti Abbud (Vice Chair of the IBA Arbitration Committee and partner at BMA Advogados in São Paulo, Brazil). The panelists were Shreya Jain (partner at Shardul Amarchand Mangaldas & Co. in Mumbai, India), Dharsini Prasad (partner at Willkie Farr & Gallagher (UK) LLP in London, England), and Edgardo Munoz (arbitrator and tenured professor of Law at Universidad Panamericana in Guadalajara, Mexico). The author of this report intervened to 'defend' the point of view of the ordinary courts.

Under the guidance of the moderators, each point for discussion was addressed by two panellists, the first illustrating the issue, and the second providing a complementary or contrasting analysis. Firstly, Edgardo, the academic on the panel, set the scene by describing the international standards for the granting of urgent interim relief. While mentioning the jurisdiction of the arbitrator, and requirements for a prima facie case on the merits and risk of irreparable harm, Edgardo focused on the need for proportionality, ie an applicant's interest in obtaining emergency relief should outweigh any inconvenience/harm to the respondent, to be assessed in terms of fairness and impact. Shreya complemented the discussion, clarifying that while interim relief standards are largely internationalised, there is often a significant municipal law element in these standards. For instance, some jurisdictions require 'irreparable harm' to be demonstrated, while others require the slightly lower standard of 'serious harm'. And in jurisdictions where specific performance is not an available remedy, obtaining an interim mandatory injunction requires satisfying a much higher standard. 

Dharshini then led a discussion about the types of interim measures that may be granted by arbitrators, focusing on anti-suit injunctions and injunctions restraining criminal and other regulatory proceedings by States and State-owned entities. Darshini mentioned that the arbitration rules chosen by the parties or the national laws at the seat of arbitration may restrict the availability of some interim measures such as freezing orders, asset attachments, anti-suit or anti- arbitration injunctions, often based on the lack of imperium over third parties (eg banks). Edgardo added some criticism of anti-suit injunctions as disrupting comity between jurisdictions, and of injunctions restraining State regulatory or criminal actions, which may be seen as an overreach, infringing on sovereign powers. 

The pros and cons of seeking emergency relief from emergency arbitrators was discussed. The main critical issues about recourse to emergency arbitrators that were identified are the possibility of obtaining ex parte orders and decisions binding for third parties and the uncertain enforceability. It is worth noting that the number of emergency arbitrator proceedings administered by major arbitral institutions is less than 5% of the total arbitral proceedings administered.  Dharshini commented on worldwide freezing injunctions before English courts, as well as other common law courts.

Shreya then investigated the topic of the enforcement of interim measures issued by (emergency) arbitrators and emphasised that enforceability should be the driving factor when deciding which forum to seek interim relief from. She also mentioned the issue of whether interim orders/awards are “final” in nature and enforceable under the New York Convention, against Edgardo's explanation of the current success of the expansive interpretation of the same convention. I briefly explained that in the European Union it is possible for urgent relief issued by the court of a EU Member State to, generally, be declared enforceable  and enforced in the other EU Member States, pursuant to the rules of Brussels I-bis Convention.

The panellists also shared their experience in specific sectors and in managing emergency arbitrations. Edgardo's experience in sports arbitration is that the focus is on the causality of damage and, of course, on the urgent need for interim relief.  Dharshini commented that when it comes to intellectual property arbitration, the focus on irreparable harm and the balance of convenience differs from sports (harm is capable of being quantified given the prevalence of damages in IP disputes, unless there are other types of harm like erosion in market share, loss of customer relationships, etc.). Shreya considered emergency arbitration as a key procedural tool in the parties' arsenal, but cautioned the consideration of key factors before filing, such as the prospects of success, the timelines involved, the enforceability of orders and, finally, the fact that emergency arbitrations may be exhausting for parties, emergency arbitrators and counsel. Dharshini referred to the availability of urgent interim relief from national courts where parties have access to emergency arbitration (e.g. English case law and Law Commission report).

To close the discussion, Shreya and I discussed the importance of having express time limits for emergency arbitrators on issuing decisions.

Patricia and André wrapped up the discussion and collected some questions from an audience which mainly focused on the panel's previous experience as emergency arbitrators.