Obtaining interim measures swiftly and effectively is frequently of paramount importance for parties in international arbitration. Interim measures can be crucial in ensuring the ultimate satisfaction of a judgment or final award. Now they can sometimes to be ordered at the outset of a case, before the arbitral tribunal hearing the merits is even constituted. Under most arbitral institution rules, it takes time to establish an arbitral tribunal. During that time, irreparable harm to a party may occur. Time is therefore of the essence, and for many years international arbitration was ill-equipped to address such situations, forcing the parties to request interim measures before the very state courts that they had chosen to avoid. International arbitration, in its continuous search for efficiency and responsiveness to user needs, has proven very dynamic and undergone substantial changes thereby ensuring the effectiveness and perennial use of arbitration as a method for settling commercial disputes. Most recently, arbitral institutions have introduced a new player in the field to respond to the temporal need of parties for interim measures before the constitution of the arbitral tribunal: the emergency arbitrator. Albeit welcomed by the international arbitration comments, it remains to be seen how local laws will receive this new player in the field and how it will compare in terms of efficiency with state court orders for interim relief. In France, given the uncertainty surrounding the direct enforceability of an emergency arbitrator’s decision and the relative efficiency of French courts, it is likely that state courts will be, in most situations, the natural forum for requesting interim measures. Emergency arbitration however is a powerful tool that responds to a market demand and its efficiency transcends local jurisdictional orders. While state courts may remain a preferred forum for seeking prearbitral interim relief; their non-exclusive role in this matter creates the opportunity for the emergency arbitrator procedures. It becomes increasingly clear that emergency arbitrator procedures will become a widely used alternative and an efficient tool for obtaining urgent interim relief within the critical period of time prior to the constitution of the arbitral tribunal.
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Fordham International Law Journal
Volume 40, Number 3
Diana Paraguacuto-Mahéo & Christine Lecuyer-Thieffry, Emergency Arbitrator: A New Player In The Field – The French Perspective, 40 Fordham Int’l L.J. 749 (2017).