Emergency relief in arbitration.

Byline: Gordon P. Katz

A dispute has arisen that cannot be settled. You turn to the parties' contract and discover that all disputes are to be resolved by arbitration.

You next file on behalf of your client a demand for arbitration. But what if you need preliminary relief maybe an injunction, maybe security? What do you do?

There is an answer. You may seek emergency relief through either the arbitral authority for example, the American Arbitration Association, if that is the parties' chosen arbitral forum or you can go directly to court for emergency relief. In short, you have options.

Rules of the AAA permit an arbitrator to make interim awards (Rule 37, AAA Commercial Rules) and provide a valuable and efficient procedure for a party to an arbitration agreement to obtain "emergency measures of protection." (Rule 38, AAA Commercial Rules).

If you are governed by the AAA rules, Rule 38 is particularly useful. It provides that a party has the opportunity to obtain emergency relief within days. According to AAA Rule 38(a) and (b), when a party in need of emergency relief notifies the AAA of the nature of, and reasons for, such requested relief, "the "AAA shall appoint within one day of receipt a single emergency arbitrator designated for rule on emergency applications."

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While emergency arbitration proceedings are still relatively new, their use is growing.

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The emergency arbitrator is required to disclose immediately any circumstance likely to impact his impartiality. The appointment and circumstances, if any, are then communicated to the parties, who have one day following receipt to challenge the appointment of the emergency arbitrator. AAA Rule 38(c).

No later than two business days after appointment, the AAA emergency arbitrator must establish a schedule for consideration of the application for emergency relief. The schedule must provide a reasonable opportunity for all parties to be heard, but it need not be in person. Telephone or video conferences, or written submissions, are permitted. AAA Rule 38(d).

If the emergency arbitrator is satisfied that the absence of emergency relief would result in immediate irreparable law, and that the moving party is entitled to relief, the emergency arbitrator may enter an interim order or award granting the relief but must state the reasons for the order or award. AAA Rule 38(e).

JAMS provides a similar emergency relief procedure in its Rule 2(c). Indeed, the specific provisions of...