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

The gap

Arbitration's central structural feature is that the decision-maker is created for the dispute. That has real advantages — party-selected expertise, a tribunal with time for the case — and one obvious cost: between the moment a dispute becomes urgent and the moment a tribunal is constituted, nobody has authority to do anything.

The interval is not short. Even under expedited procedures, appointing three arbitrators, running conflicts checks, resolving challenges, and holding a first procedural conference takes weeks at best and commonly two to four months. A party facing the imminent dissipation of assets, the destruction of evidence, the disclosure of a trade secret, the termination of a distribution network, or a call on a bank guarantee does not have that long.

Two mechanisms fill the gap. Emergency arbitrator procedures under institutional rules appoint a single arbitrator within days, with power to grant urgent interim relief until the tribunal is constituted. Applications to national courts for provisional relief in aid of arbitration remain available, and for some categories of relief they are the only real option.

Neither is a substitute for the other, and a party in genuine urgency should be thinking about both.

Emergency arbitrator procedures

Every major arbitral institution now provides for an emergency arbitrator, and while the details differ, the architecture is consistent.

Availability. Emergency provisions generally apply automatically to arbitration agreements concluded after the relevant rules took effect. Parties may opt out, and some do — usually because they want court relief exclusively, or because they are concerned about enforceability. An opt-out should be a deliberate decision, not the result of using an old model clause.

Timing. An application may be made before or after the request for arbitration but before the tribunal is constituted. Once the tribunal exists, its own powers apply and the emergency procedure lapses.

Appointment. Institutions appoint within one to two business days of the application. This is genuinely fast, and it is one of the things the institutions do best.

Procedure. The emergency arbitrator sets a timetable, usually giving the respondent two to five days to respond, and may hold a hearing — often by telephone or video, lasting an hour or two. Ex parte relief is generally not available; the respondent must have an opportunity to be heard, though it may be a short one.

Decision. Typically within fourteen to fifteen days of appointment or of transmission of the file. The decision may take the form of an order or an award, and which it is matters considerably for enforcement.

Duration. The decision binds until the tribunal is constituted, and the tribunal may modify, terminate, or annul it. The emergency arbitrator has no further role and does not sit on the tribunal.

Cost. Institutional fees plus the emergency arbitrator's fee — real but modest against the value of urgent relief, and often payable in advance by the applicant.

The standards applied

Emergency arbitrators apply broadly the standards familiar from provisional relief generally, adapted to the arbitral context.

Prima facie jurisdiction. The emergency arbitrator must be satisfied, on a preliminary basis, that there is an arbitration agreement covering the dispute and that the emergency provisions apply. This is a lower threshold than a final jurisdictional determination, and it does not bind the tribunal.

Urgency. The relief cannot await the constitution of the tribunal. This is the requirement that most applications fail. An applicant who has known about the problem for four months and applies the week before a hearing will be asked why.

Prima facie case on the merits. Some reasonable possibility of success — not a full merits assessment, and emergency arbitrators are careful to say that their views do not bind the tribunal.

Irreparable or serious harm. Harm that damages could not adequately remedy. Purely financial loss from a solvent counterparty is generally not irreparable; loss of a business, destruction of goodwill, disclosure of confidential information, and dissipation of assets beyond enforcement reach generally are.

Balance of harm. Whether the harm to the applicant if relief is refused exceeds the harm to the respondent if it is granted.

Proportionality, and whether the relief preserves the status quo rather than granting the substance of the claim in advance.

The court standard for a preliminary injunction, stated in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), is close in substance: likelihood of success on the merits, likely irreparable harm absent relief, a balance of equities in the movant's favour, and that an injunction is in the public interest. Winter rejected the view that a mere possibility of irreparable harm suffices — the standard is likelihood — and emergency arbitrators reason similarly even where the formal test differs.

The enforceability problem

The most debated question in this area is whether an emergency arbitrator's decision can be enforced if the losing party ignores it.

The practical answer, first: compliance rates are high. Emergency decisions are usually obeyed, because the party that ignores one must then explain itself to the tribunal that will decide the merits, and because non-compliance is a fact the tribunal will remember when it comes to costs and adverse inferences.

The legal answer is genuinely unsettled, and it turns on whether an emergency decision is an "award."

The New York Convention, given effect by 9 U.S.C. § 201 and following, applies to arbitral awards. An emergency decision styled an order is not obviously an award. And even a decision styled an award is arguably not final, because it is expressly subject to modification by the tribunal — and finality has traditionally been a requirement for enforcement.

The counter-argument is that a decision is final as to the interim relief it grants: it conclusively determines the parties' rights for the period until the tribunal acts, and that is the only question it purports to decide. Courts in several jurisdictions have accepted a version of this reasoning in relation to interim awards by constituted tribunals, and some have extended it to emergency decisions.

United States courts have confirmed emergency arbitrator awards in a number of cases. In Yahoo! Inc. v. Microsoft Corp., 983 F. Supp. 2d 310 (S.D.N.Y. 2013), the court confirmed an emergency arbitrator's award of injunctive relief, reasoning that an interim award that finally disposes of a separate, discrete issue is confirmable. That approach — asking whether the decision finally resolves the discrete question of interim relief — is the most useful framework available.

Practical drafting responses:

  • Ask for an award, not an order. Where the rules permit either, request the award form and ask the emergency arbitrator to state that it finally determines the application for interim relief.
  • Provide expressly for enforcement in the clause: the parties agree that any emergency decision is binding, agree to comply, and agree that it may be enforced as an award in any court of competent jurisdiction.
  • Consider a contractual consequence for non-compliance — liquidated damages, or an agreement that non-compliance may be taken into account in costs.
  • Keep the court route open. An emergency decision that will not be complied with may be worth less than a court injunction obtained directly.

Court relief in aid of arbitration

Applications to national courts for provisional relief remain available and are frequently the better route.

The waiver concern, resolved. An early view held that seeking court relief was inconsistent with an agreement to arbitrate. That view has been comprehensively rejected. Ortho Pharmaceutical Corp. v. Amgen, Inc., 882 F.2d 806 (3d Cir. 1989), held that a district court may grant injunctive relief pending arbitration where the traditional standards are met, reasoning that such relief preserves the arbitration's meaningfulness rather than undermining it. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Salvano, 999 F.2d 211 (7th Cir. 1993), reached a similar conclusion, and courts have generally followed.

Simula, Inc. v. Autoliv, Inc., 175 F.3d 716 (9th Cir. 1999), addressed the interaction in an international context, holding that a court may grant preliminary relief in aid of arbitration where the arbitral tribunal cannot provide adequate interim relief in time — while emphasizing the strong federal policy favouring arbitration.

Section 206 of the FAA empowers a court to direct that arbitration be held in accordance with the agreement and to appoint arbitrators, and courts have relied on their equitable powers alongside it for provisional relief.

A caution. Some courts, particularly where the arbitration agreement provides for emergency arbitrator procedures, have taken the view that a party should use the arbitral mechanism first, or have treated its availability as bearing on whether court relief is necessary. The express reservation clause — stating that a party may apply to any court for interim relief and that doing so is not incompatible with the arbitration agreement — is worth including for exactly this reason.

When a court is the better route:

  • Relief against a non-party. An emergency arbitrator has authority only over parties to the arbitration agreement. A bank holding assets, a registry, a customs authority, or a third party in possession of evidence can be reached only by a court.
  • Ex parte relief. Where notice would defeat the purpose — asset dissipation, evidence destruction — only a court can act without notice.
  • Coercive enforcement. A court order carries contempt; an arbitrator's does not.
  • Relief in a jurisdiction where the assets are. Territorially specific measures — attachment, garnishment, freezing of an account — require the court of the place.
  • Where the emergency provisions do not apply because the parties opted out or the agreement predates them.

When the emergency arbitrator is better:

  • Confidentiality. Court proceedings are generally public; arbitration is not.
  • A decision-maker who will read the contract. An emergency arbitrator chosen for commercial expertise is often better placed than a judge with a crowded motions calendar.
  • Consistency with the merits. The emergency arbitrator's reasoning is available to the tribunal.
  • Cross-border effect. A single emergency decision addressed to a party operating in several jurisdictions may be more practical than separate court applications.
  • Avoiding the appearance of forum shopping, which a court application in a favourable jurisdiction can attract.

What relief is actually sought

Emergency and interim applications cluster into a small number of categories, and knowing them helps in framing an application and in recognizing what a tribunal will actually grant.

Preserving the status quo. Restraining termination of a contract, restraining a party from calling a bond or guarantee, requiring continued supply or continued performance pending the merits. The most common category, and the most likely to succeed where the applicant can show that the relationship cannot be reconstituted afterward.

Preserving assets. Restraining disposal of specific assets, or of assets generally, where there is evidence of dissipation. Emergency arbitrators grant this against parties; freezing relief effective against banks requires a court.

Preserving evidence. Restraining destruction, requiring preservation, and in some systems ordering inspection. Straightforward and frequently granted, because the burden is low and the harm from refusal is irreversible.

Protecting confidential information. Restraining use or disclosure of trade secrets, restraining employment of departing employees in breach of covenant, requiring return of materials.

Restraining parallel proceedings. A party that has commenced litigation in breach of an arbitration agreement may be ordered to discontinue it. Arbitrators have granted this, and it raises delicate questions about the relationship between the tribunal and the court seised — a court is unlikely to regard itself as bound, so the relief operates against the party rather than the proceeding.

Security for the claim. An order that the respondent provide security — a bank guarantee, a payment into escrow — for the amount claimed. Granted sparingly, and generally only where there is evidence that a future award would be unenforceable.

Security for costs. Distinct, and addressed below.

Interim payment. Ordering payment of an undisputed amount, or a portion of a claim, pending the final award. Rare, because it grants the substance of the claim, but available where the entitlement is clear and the need is urgent.

Specific performance of an interim obligation. Continuing to fund a joint venture, continuing to provide transition services, maintaining insurance.

What is generally not granted: relief that finally determines the merits; relief against non-parties; relief that could be adequately remedied in damages from a solvent respondent; and relief sought after a long delay.

Security for costs

A distinct application with its own considerations, and one that has become more prominent as third-party funding has grown.

The application asks the tribunal to order a claimant to provide security for the respondent's costs, on the ground that if the respondent succeeds it will be unable to recover them.

What is required: evidence that the claimant would be unable to satisfy a costs award. Impecuniosity alone is generally not enough, because a party's financial weakness may be the very thing the claim is about; what moves tribunals is evidence of a change in the claimant's position, of asset transfers, of a shell structure created for the claim, or of an inability to satisfy costs coupled with conduct suggesting the claimant has organized itself to avoid liability.

Third-party funding is a live issue. The existence of funding is not, by itself, a ground for security — funders do not necessarily indemnify for adverse costs, but nor is a funded claimant necessarily impecunious. What matters is whether the funder is liable for adverse costs and whether it has the means. Many institutions now require disclosure of the existence and identity of a funder, and tribunals increasingly ask whether an adverse costs indemnity exists.

Timing. Applications made early are more likely to succeed than those made after substantial costs have been incurred, when the tribunal may regard the respondent as having taken the risk.

Consequences of non-compliance. A tribunal may stay the claim, and in some cases dismiss it, though dismissal is a serious step that risks a due process challenge to the award.

Emergency arbitrators and security for costs. Rarely appropriate, because the application is not usually urgent in the relevant sense — the costs will be incurred over the life of the proceeding, and the tribunal can address it once constituted.

Once the tribunal exists

The emergency arbitrator's role ends when the tribunal is constituted, and the tribunal's own powers take over.

The source of the power is the arbitration agreement, the institutional rules, and the law of the seat. Institutional rules generally empower a tribunal to order any interim measure it deems appropriate, and most modern arbitration statutes confirm the power expressly.

What the tribunal can do with an emergency decision: confirm it, modify it, terminate it, or annul it. A party dissatisfied with an emergency decision should not treat it as final — the first substantive application to the tribunal is an opportunity to revisit it on a fuller record.

The evidentiary difference. The emergency arbitrator decided on days of evidence; the tribunal will have documents, witness statements, and time. Relief granted urgently on a thin record is frequently modified once the picture is complete, and a party that lost before the emergency arbitrator should plan for that rather than treating the loss as conclusive.

Form of relief. A tribunal may grant interim measures by order or by interim award. As with emergency decisions, the award form is preferable where enforcement may be needed, and a tribunal should be asked to make findings sufficient to support confirmation.

Security as a condition. Tribunals frequently condition interim relief on the applicant providing security for any loss the respondent suffers if the relief turns out to have been wrongly granted — the arbitral equivalent of an undertaking in damages. An applicant should anticipate this and be ready with a proposal.

Modification on changed circumstances. Interim relief is provisional by nature, and either party may apply to modify it as facts develop. That is a feature rather than a defect, and it means an applicant who did not get everything at the emergency stage has a route back.

Drafting for urgency

A handful of provisions materially improve a party's position, and all of them cost nothing at drafting.

The interim relief reservation.

Nothing in this Article prevents any party from applying to any court of competent jurisdiction for interim or conservatory relief in aid of arbitration, whether before or after the constitution of the tribunal, and such an application shall not be deemed incompatible with, or a waiver of, this agreement to arbitrate.

Emergency arbitrator provisions — decide deliberately. They apply by default under most modern rules. Opting out should be a considered decision, and the reasons for it (enforceability doubts, a preference for court relief) should be recorded. Do not opt out by accident by using a model clause from an old form or from a superseded edition of the rules.

Enforceability of an emergency decision.

The parties agree that any decision of an emergency arbitrator shall be binding on them, that they will comply with it without delay, and that it may be enforced as an arbitral award in any court of competent jurisdiction. The parties waive any objection to enforcement on the ground that such a decision is not final.

Expedited constitution. Where speed matters, provide for a sole arbitrator, or for shortened appointment periods, or for institutional appointment on a fixed timetable.

A named seat with supportive courts. The seat determines which court supervises and what interim powers it has. A seat whose courts will not grant relief in aid of a foreign-seated arbitration, or will not act quickly, is a poor choice for a relationship in which urgent relief is foreseeable.

Consider a standstill or notice provision in relationships where the foreseeable emergency is termination: an obligation to give a stated period of notice before terminating, or before calling a guarantee, converts an emergency into a manageable dispute.

Worked example one: the asset application

Sunil Rana acts for a claimant in a joint venture dispute. On a Friday afternoon he learns that the respondent has instructed the sale of the venture's principal asset, a specialized production line, to an affiliate at what appears to be a substantial undervalue, with completion scheduled for the following Wednesday.

The assessment, in two hours:

The arbitration agreement provides for institutional arbitration with emergency provisions, seated in New York. No request for arbitration has been filed.

What he does, in parallel:

Track one — emergency arbitrator. He files a request for arbitration and an emergency application the same evening. The institution appoints on Monday morning. The emergency arbitrator sets a hearing for Wednesday morning and directs the respondent not to complete the sale before the hearing — an interim direction pending the decision, which several institutions' rules permit.

Track two — court. He simultaneously prepares an application to the federal court for a temporary restraining order, on the ground that the emergency arbitrator may not act in time and cannot bind the affiliate purchaser, which is not a party to the arbitration agreement. He relies on the express reservation in the clause.

Why both. The emergency arbitrator can bind the respondent. Only the court can reach the affiliate. And if the sale completes on Wednesday, an arbitral order against the respondent is worth very little.

The outcome. The court grants a TRO on Tuesday restraining both the respondent and the affiliate, on notice, expiring in fourteen days. The emergency arbitrator, on Wednesday, orders the respondent not to dispose of the asset pending the tribunal's constitution and to provide an accounting of any steps already taken. The two work together: the arbitral order governs the parties' relationship going forward; the court order reaches the third party.

The lesson. In a genuine emergency, the question is not "arbitrator or court" but "which does what." An emergency arbitrator cannot bind a non-party, and a court will not decide the merits of the joint venture dispute. Running both, with each doing what only it can do, is the right answer more often than practitioners assume.

Worked example two: the terminated distributor

Elke Brandner represents a distributor whose supplier has purported to terminate a twelve-year exclusive distribution agreement on thirty days' notice, alleging breaches the distributor disputes. The distributor's entire business is the distribution of the supplier's products; termination would destroy it.

The emergency application seeks an order restraining the supplier from terminating, and requiring continued supply on the existing terms, until the tribunal determines whether the termination was valid.

The arguments that work:

Urgency. Termination takes effect in twenty-two days; the tribunal will not be constituted for two months.

Irreparable harm. The distributor's customers will move to whoever supplies them, and they will not come back. Its distribution staff will leave. The business will not exist to be compensated. Elke supports this with evidence rather than assertion: customer contracts with change-of-supplier clauses, evidence of competitor approaches to her client's customers, and an accountant's assessment of the business's dependence.

Balance of harm. The supplier's harm from continued supply for a few months is quantifiable and modest — it receives payment on the existing terms.

Prima facie case. The alleged breaches are disputed and, on the contract's own terms, may not be material.

Status quo. The relief preserves the position rather than granting the substance; if the supplier is right, it terminates in a few months and its loss is calculable.

The arguments against, which the supplier makes:

This is specific performance of a personal services relationship, which tribunals are reluctant to order.

The distributor's real complaint is financial, and damages are calculable.

The distributor delayed, having received the termination notice eleven days before applying.

The outcome. The emergency arbitrator orders continued supply for a defined period on the existing terms, conditioned on the distributor providing security for the supplier's potential loss and on the distributor paying for goods in advance rather than on credit. The delay point costs Elke's client the broader relief it sought.

The lesson. Move immediately. Eleven days of delay in a case where termination takes effect in thirty-three is enough to affect the outcome, and it is entirely avoidable.

Worked example three: the application that failed

Marcus Halvorsen applies for emergency relief restraining a former joint venture partner from launching a competing product, alleging misuse of confidential information.

Why it fails, in the emergency arbitrator's own reasons:

No urgency demonstrated. The applicant learned of the competing product's development eight months earlier, from a trade publication, and did nothing. It applied when the launch was announced. The emergency arbitrator observes that the urgency was created by the applicant's own delay.

No irreparable harm. The claimed harm is lost sales, which is calculable. The applicant asserted damage to reputation and market position but offered no evidence of it.

The relief sought is the substance of the claim. Restraining the launch permanently would give the applicant everything it seeks in the arbitration, on a two-day record.

Balance of harm. The respondent has invested substantially in the launch, has commitments to customers, and would suffer immediate and quantifiable loss.

Prima facie case weak. The confidential information alleged was described generically, and the applicant did not identify what was taken, when, by whom, or how it appears in the respondent's product.

What Marcus should have done differently. Applied when he learned of the development, not when the launch was announced. Identified the specific information with particularity. Sought narrower relief — preservation of documents and an order restraining further use of specified materials — rather than a launch injunction. And gathered evidence of harm rather than asserting it.

The cost of failing. Beyond the fees: the tribunal, when constituted, has read a decision recording that the applicant's case was weak and its conduct dilatory. That is a difficult starting position, and it is one reason not to bring a marginal emergency application at all.

Investor-state and treaty contexts

Emergency and provisional relief in investor-state arbitration follows a related but distinct logic, and practitioners moving between commercial and treaty work should note the differences.

Provisional measures against a state are available under most treaty arbitration regimes, but the relief sought is different: suspension of criminal proceedings against an investor's personnel, restraint of enforcement action, preservation of a licence, non-aggravation of the dispute, and preservation of the status quo pending the award.

Non-aggravation is a distinctively treaty-context category. Tribunals have ordered parties to refrain from steps that would aggravate the dispute or prejudice the tribunal's ability to grant effective relief, including public statements and parallel proceedings.

Emergency arbitrator provisions are generally not available in the principal treaty arbitration frameworks, whose rules provide instead for provisional measures by the tribunal once constituted. Where treaty arbitration is conducted under commercial arbitration rules, the emergency provisions may apply, though whether an emergency arbitrator can bind a state is a question with obvious sensitivities.

Enforcement against a state raises sovereign immunity questions that do not arise in commercial arbitration, and provisional measures against state assets face immunity from execution even where the state has waived immunity from jurisdiction.

Compliance is nonetheless high, for reasons of reputation and of the tribunal's ultimate authority over the merits — the same dynamic that produces compliance in commercial cases, amplified by the visibility of treaty proceedings.

The relationship between the two forums

A recurring practical question is what happens when a party goes to both.

Concurrent applications are permissible where the clause reserves court relief, and running both is sometimes the right strategy — as in the asset example above, where each forum could do something the other could not.

But the risks are real:

  • Inconsistent orders. A court and an emergency arbitrator reaching different conclusions on the same application is embarrassing and creates a compliance problem.
  • The appearance of forum shopping. A party that loses before the emergency arbitrator and then applies to court on the same facts will be met with the argument that it is seeking a second bite, and courts are receptive to it.
  • Cost. Two applications, two sets of fees, two teams.
  • Prejudice with the tribunal. A tribunal that reads a record of duplicative applications forms a view.

The disciplined approach:

  • Decide what each forum is for, and say so in the applications. "We apply to the court because the emergency arbitrator cannot bind the third party" is a reason a court will accept.
  • Disclose. Tell the court about the arbitral application and the emergency arbitrator about the court application. Both will find out, and disclosure costs nothing while concealment costs credibility.
  • Do not re-litigate. If the emergency arbitrator refuses relief on the merits, do not ask a court for the same relief on the same facts. Ask only for what the arbitrator could not grant.
  • Coordinate the record. Inconsistent factual assertions across the two applications are the most damaging thing a party can do to itself here.

What an emergency application actually looks like

For anyone who has not run one, the shape is worth describing, because it is unlike any other arbitral step.

The timeline, in practice:

  • Day 0. Application filed with the institution, with the fee. It must identify the parties, the arbitration agreement, the relief sought, the reasons, and why the relief cannot await the tribunal. The request for arbitration is filed at the same time or within a few days.
  • Day 1–2. The institution notifies the respondent and appoints the emergency arbitrator, after a conflicts check.
  • Day 2–3. The emergency arbitrator issues a first procedural order: a timetable, usually a response within two to five days, and a hearing date.
  • Day 3. The respondent may be directed to preserve the position pending the decision — a valuable interim direction that several institutions' rules permit and that applicants often forget to request.
  • Day 5–8. Response filed.
  • Day 8–10. Hearing, by video or telephone, typically one to three hours.
  • Day 10–15. Decision.

The submissions are short. Fifteen to thirty pages, with the key documents exhibited. This is not the place for a full merits case, and an applicant that files two hundred pages signals that it does not understand the exercise.

The evidence is documentary. Witness statements are used but are brief and focused on the specific facts establishing urgency and harm. There is no cross-examination in most emergency proceedings.

The hearing is conversational. The emergency arbitrator will have read everything and will ask questions. Prepared speeches are unhelpful. What helps is a one-page summary of the relief sought, in operative terms, that could be lifted into the decision.

Draft the order you want. Applicants who provide precise, workable draft operative language get relief closer to what they asked for, because the arbitrator is working under time pressure and a good draft is a gift.

Defending an emergency application

The respondent's position is uncomfortable — days to respond, on a matter that may have been prepared for weeks — and the defences that work are mostly not about the merits.

Attack urgency first. When did the applicant know? What has it done since? Delay is the most common and most effective answer, because it is documentary and it does not require the respondent to prove anything about the merits. A chronology exhibit showing the applicant's knowledge and inaction is worth more than pages of argument.

Attack irreparability. Is the claimed harm financial and calculable? Is the respondent solvent and able to satisfy an award? A short statement of the respondent's financial position answers a great deal.

Attack the scope. Even where some relief is appropriate, the relief sought is usually broader than necessary. Propose the narrower version the respondent can live with — this is the single most productive move available, because the arbitrator under time pressure will often take it.

Ask for security. If relief is granted, the applicant should provide security for the loss the respondent will suffer if the relief was wrongly granted. Ask for it, quantify it, and propose the form.

Raise jurisdiction, but carefully. A prima facie jurisdictional objection may defeat the application. But a full jurisdictional argument cannot be resolved in days, and pressing it too hard risks the arbitrator granting relief anyway on a prima facie basis while the objection stands. Preserve the objection expressly; do not stake the response on it.

Do not over-argue the merits. The emergency arbitrator is not deciding them, and a respondent that files a full merits defence has told the arbitrator that the case is complicated — which favours preserving the status quo.

And comply if you lose. Non-compliance is a fact the tribunal will weigh, and it converts a procedural loss into a credibility problem that persists for the life of the case.

The decision that precedes all of this

Before any of the mechanics, a party in an emerging crisis has to decide whether to seek urgent relief at all, and the answer is often no.

The case for applying: the harm is genuinely irreversible; the relief would actually prevent it; the applicant can meet the standard on the evidence available now; and the cost is proportionate.

The case against: the harm is financial and the counterparty is solvent; the evidence is not ready; the application would reveal the applicant's case prematurely; the relief sought is really the merits; or the delay in bringing it undermines the urgency.

Two costs that are usually underweighted:

The record. An emergency decision recording that the applicant's case appeared weak, or that it delayed, is read by the tribunal that will decide the merits. That is a real and durable cost, and it is why marginal applications should not be brought.

Disclosure. An emergency application reveals the applicant's theory, its evidence, and its urgency, months before it would otherwise have to. The respondent gets a preview and time to prepare a response. Where the applicant's case will be stronger with time and documents, showing it early is a genuine strategic loss.

The middle course, frequently the right one: send a letter. A carefully drafted notice — identifying the conduct, asserting the breach, demanding a standstill, and stating that an emergency application will follow if the conduct continues — resolves a substantial proportion of would-be emergencies. It costs a day, it creates a record of the applicant's promptness that answers the delay argument later, and it puts the respondent on notice that it is proceeding at risk.

Counsel who reach for the emergency application first sometimes win. Counsel who send the letter first, and apply only when it fails, win more often and spend less.

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