Dr Velimir Zivkovic, Associate Professor at the University of Warwick School of Law and an independent counsel and consultant in investor-State, commercial and sports arbitration, moderated this session. He was joined by Matej Pustay, Partner at Squire Patton Boggs, who advises on commercial and investor-state arbitration and had recently handled two ICC emergency arbitrations, and Miljana Bigovic, Managing Associate at DLA Piper in Stockholm, who represents clients in arbitrations seated in Sweden and abroad. Their practical experience grounded a discussion of when relief genuinely cannot wait.

Overview

Emergency relief matters because a client’s position can be lost before a tribunal exists. Zivkovic framed the topic widely, covering both emergency arbitrators and urgent measures sought from an already constituted tribunal. The speakers agreed that applicants usually want to preserve a status quo or stop something happening, and that urgency is shown through the facts of each case rather than any formula.

Pustay’s two recent ICC applications arose from a terminated concession agreement. One sought to stop the terminating party taking control of the project, the other to stop lenders accelerating the loan and calling guarantees. Urgency was evidenced by the other side’s conduct, such as a bank’s demand to pay or face enforcement, and by objective factors such as approaching winter on a construction site. Bigovic described parties who, alerted by pre-action correspondence, begin hiding assets, and noted that emergency arbitration avoids the older problem of courts declining jurisdiction because of an arbitration clause. Applicants must still show jurisdiction, proportionality, irreparable harm and urgency. Security for costs is difficult to obtain because it can usually wait for the tribunal. Speed was not an issue: Pustay’s emergency arbitrators were appointed within two and four days, with decisions in under three weeks.

The harder question is what follows success. Emergency relief usually arrives as an order rather than an award, so cross-border enforcement can be uncertain. Bigovic had faced difficulty enforcing against a Romanian respondent and suggested national courts with broader powers may sometimes be the better route. Pustay believed Singapore would enforce such orders but noted other states differ, and that tribunals look unkindly on parties who ignore interim measures, an incentive that cannot be relied on. Neither speaker had seen human rights or environmental emergency measures, and Pustay doubted their usefulness where harm has already occurred. Bigovic noted that the ICC rules exclude emergency arbitration for investment disputes.

Key Takeaways

• Build the urgency case on evidence. Documented conduct by the other side, such as enforcement threats or attempts to take control of a site, is the most persuasive support.
• Test the case before committing. Applicants must show jurisdiction, proportionality, irreparable harm and urgency, and security for costs rarely meets the bar.
• Read institutional practice notes and published emergency decisions. They show what succeeds and help lawyers give clients a realistic assessment rather than an optimistic one.
• Plan enforcement from the outset. Consider where the order must bite and whether a national court would offer stronger or more reliably enforceable relief.
• Do not rely on formal enforcement alone. The risk of antagonising the tribunal gives parties a reason to comply voluntarily, but it is no substitute for enforceability.
• Think about how clients hear the word emergency. Craig Connal, an attendee, questioned whether the label misleads businesses, suggesting the real test is whether something must be done before a tribunal is formed.