Document type: Checklist Practice area: Arbitration — International Arbitration Jurisdiction: United States Last reviewed: 5 September 2026

Section 1 — The first hour

  • What is the deadline? The date the irreversible thing happens
  • What relief would prevent it? Stated as an operative order, in one sentence
  • Who must be bound? An emergency arbitrator binds only parties to the arbitration agreement — a bank, registry, purchaser, or third party requires a court
  • What does the clause say? Institution, rules, seat, emergency provisions in or out, court relief reserved
  • When did the client know? Delay is the most common reason applications fail
  • What evidence exists today? Not what could be assembled in three weeks

Section 2 — Should you apply at all?

Apply when:

  • The harm is genuinely irreversible
  • The relief would actually prevent it
  • The standard can be met on evidence available now
  • The cost is proportionate

Do not apply when:

  • The harm is financial and the counterparty is solvent
  • The evidence is not ready
  • The relief sought is really the merits
  • The client's own delay has undermined urgency

Costs usually underweighted:

  • The record — an adverse decision is read by the tribunal deciding the merits
  • Disclosure — the theory, evidence, and urgency are revealed months early

Consider first:

  • A standstill letter: identify the conduct, assert the breach, demand a standstill, state that an application will follow. Costs a day; creates a record of promptness; resolves many would-be emergencies

Section 3 — Forum choice

The emergency arbitrator can: bind the parties · act confidentially · apply commercial judgment It cannot: bind non-parties · act ex parte · enforce coercively

A court can: bind third parties · act without notice · grant attachment or freezing relief where the assets are · enforce by contempt

  • Both forums used only where each does something the other cannot
  • Each application states why that forum is needed for that relief
  • Each disclosed to the other — both will find out
  • Factual assertions identical across both
  • No re-litigating: if the arbitrator refuses on the merits, do not ask a court for the same relief on the same facts

Section 4 — Evidence of urgency

  • Chronology exhibit: what the client learned, when, from what document, and what it did
  • The deadline documented — termination notice, completion timetable, launch announcement, guarantee expiry
  • Why the tribunal cannot be constituted in time, with the institution's own appointment timeline
  • Any delay addressed head-on, with an explanation of what the client was doing
  • Recognize that an acknowledged delay is far less damaging than one first raised by the respondent

Section 5 — Evidence of irreparable harm

What persuades:

  • Customer and counterparty contracts showing relationships will move and not return
  • Evidence of competitor approaches to customers or staff
  • Financial analysis of dependence on the relationship, from a credible source
  • Evidence of the respondent's financial position where enforceability is the concern
  • Evidence of dissipation — transfers, restructurings, asset movement
  • For confidentiality: what the information is, why it matters, what disclosure destroys
  • Explanation of why damages would be speculative

What fails:

  • Bare assertions of "serious and irreparable harm"
  • Projections with no basis
  • Financial loss characterized as reputational

Section 6 — The application

  • Parties, arbitration agreement, relief sought, reasons, and why it cannot await the tribunal
  • Request for arbitration filed at the same time or within the permitted period
  • HOLDING DIRECTION REQUESTED — an interim direction to preserve the position pending the decision. The most valuable item in the first 48 hours and routinely omitted
  • Fee paid promptly — an unpaid fee delays appointment
  • Full party list provided — affiliates, guarantors, funders — for conflicts
  • Subject-matter expertise, languages, and required availability communicated to the institution
  • Submissions 15–30 pages, key documents exhibited
  • Witness statements short, signed, directed at urgency and harm — not the merits

Section 7 — The operative order

  • Drafted in language that could be lifted into the decision
  • Operative and specific — not "preserve the status quo"
  • Bounded in time: until the tribunal is constituted and determines otherwise
  • Capable of compliance
  • Reporting obligation included where useful
  • A fallback drafted — the narrower relief the client would accept
  • Framing test: does this preserve the position, or grant what is being claimed?

Section 8 — Security

  • Respondent's realistic exposure quantified
  • Form proposed: bank guarantee, escrow, parent undertaking
  • Release mechanism proposed
  • Cost of providing it modelled before filing — fees, tied-up cash, balance sheet effect
  • Client's ability to provide it confirmed
  • Where security cannot be provided, the reason stated and the argument made

Section 9 — The hearing

  • One to three hours, by video; the arbitrator will have read everything
  • One-page summary of the relief sought in operative terms
  • Ready to answer: why can the tribunal not deal with this?
  • Ready to answer: what is the narrower order you would accept?
  • No prepared speeches

Section 10 — Defending an application

  • Attack urgency first — chronology exhibit showing knowledge and inaction
  • Attack irreparability — is the harm calculable? is the respondent solvent?
  • Attack scope, and propose the narrower order you can live with — the most productive move available
  • Ask for security, quantified, in a proposed form
  • Preserve jurisdiction expressly, but do not stake the response on an argument that cannot be resolved in days
  • Do not over-argue the merits — a full defence signals complexity, which favours preserving the status quo
  • Comply if you lose — non-compliance is a credibility problem for the life of the case

Section 11 — Enforcement

  • Award form requested where the rules permit, with a statement that the decision finally determines the application
  • Confirmation sought in a court with jurisdiction over the respondent
  • Non-compliance reported to the tribunal as soon as constituted, with a request for confirmation in the tribunal's name, adverse inferences, and costs
  • Parallel court application considered, framed as necessary because the arbitral order was not complied with
  • Everything recorded contemporaneously

Section 12 — Cross-border

  • Jurisdictions mapped: where the assets are, where the counterparty operates, where enforcement will be sought
  • Local counsel engaged on day one with a specific question: can you get relief here, how fast, what do you need
  • Checked per jurisdiction: relief in aid of a foreign-seated arbitration? interim awards enforceable? emergency decisions treated as awards? timing? ex parte available?
  • Arbitrator asked for findings supporting local enforcement
  • Do not over-file — failed applications in several jurisdictions become a record the counterparty uses

Section 13 — After the tribunal is constituted

  • The emergency decision is provisional — the tribunal may confirm, modify, terminate, or annul
  • Successful applicant: apply promptly for confirmation in the tribunal's own name, in award form, with findings supporting enforcement
  • Unsuccessful party: the first substantive application is the opportunity to revisit on a fuller record
  • The emergency decision addressed expressly in the first submissions — do not leave the tribunal to work out what remains in force

Section 14 — Team and process

  • Roles assigned in hour one: lead · drafter (one person) · evidence owner · client contact · institutional liaison · local counsel
  • One named client contact available at any hour, empowered to obtain documents and decisions
  • Client email searched, not just document management systems
  • Incomplete exhibits disclosed as incomplete
  • Chronology drafted first, before the submissions
  • A stop point set: if the evidence of urgency or harm is not there by a stated hour, the application does not go

Section 15 — Fix the clause afterward

  • Express court-relief reservation, before and after constitution, stating such an application is not incompatible with the arbitration agreement
  • Deliberate decision on emergency provisions — in or out, recorded, not inherited from an old model clause
  • Enforceability provision: emergency decisions binding, parties will comply, enforceable as an award, objection to finality waived
  • A seat whose courts will act quickly in aid of arbitration
  • Expedited constitution where speed matters
  • Notice or standstill obligation before termination or before a call on a guarantee

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