If you are taking your dispute to arbitration, you may want to consider whether an arbitrator can take emergency or interim measures like a court could. While an arbitration has some similarities to court proceedings, in some situations the emergency relief could be more difficult to obtain, not enforceable, or simply not available. These limitations may be changing as arbitration institutions (the organizations that administer arbitrations and with which arbitrators are associated) change their rules.
When you file a lawsuit or otherwise bring a claim in court, you often have emergency or interim options for getting relief. For example, you can obtain an injunction to prevent a party from performing an act or to require a party to perform an act before trial. You can make this request of the judge and receive a decision in a very short amount of time compared to the usual progress of a lawsuit. This can keep you from incurring more loss while you wait for a trial date.
When you use arbitration instead of filing in court, or if your dispute is ordered to arbitration by a court, you could have fewer options. Your ability to get an order that acts as an injunction could depend on whether the arbitration institution has rules that permit interim orders. Some institutions do not permit these types of orders – the arbitrator can make only final orders disposing of all the issues. Others permit the orders, but they may not be legally enforceable if a party does not obey. They may not be enforceable because arbitrators' decisions do not always have the legal force of a judge's order, or the orders may need to be confirmed by a court. Further, some institutions do not permit interim relief until an arbitrator or tribunal is officially appointed. A delay in appointing an arbitrator could result in more harm.
Some arbitration institutions have begun to address these practical problems that parties who need emergency orders face. They have created procedures for obtaining binding orders, such as allowing parties to go to the court for those orders only. In many jurisdictions, the courts allow you to request an emergency injunction in court first, then submit the non-emergency part of the dispute to arbitration. This is not considered to be a violation of a required arbitration provision in a contract because otherwise, there is no way to get immediate relief.
If you are considering submitting a dispute to arbitration, you should think about whether you anticipate needing emergency relief. For situations in which emergency relief could be necessary, you may want to bring the dispute in court instead. Alternatively, you may be able to seek emergency relief in court, then submit to arbitration. Sometimes you will have to begin an arbitration proceeding, then figure out how to get emergency relief later.
In any case, you should check the rules of the arbitration institution you will be using, as well as the rules of the court that would have jurisdiction over an interim dispute. Consult an attorney for guidance on these issues and interpretation of the applicable laws.
To find out more about arbitration of disputes, visit Gonsalves-Sabola Chambers online or call the office at +1 242 326 6400.