Interim Measures and Emergency Relief in Arbitration

Arbitration's private, consensual structure creates a practical problem when a party needs urgent protection before a full hearing can be convened: the default timeline for constituting a tribunal and reaching a final arbitration award may take months or years, during which irreversible harm can occur. Interim measures and emergency relief are the procedural mechanisms that address this gap, authorizing temporary orders that preserve the status quo, protect assets, or prevent ongoing injury while the merits are still being decided. This page covers the definition and scope of these mechanisms, how they are granted, the scenarios in which they arise most frequently, and the boundaries that govern arbitral authority to issue them.

Definition and scope

Interim measures in arbitration are temporary orders issued by an arbitral tribunal — or, under institutional rules, by a specially appointed emergency arbitrator — directing a party to take or refrain from a specific action pending the final resolution of a dispute. They are distinct from the final award on the merits and are generally intended to be time-limited.

The Federal Arbitration Act (9 U.S.C. §§ 1–16) does not explicitly authorize arbitral tribunals to grant interim measures, but courts interpreting the FAA have broadly held that the power to preserve the subject matter of a dispute is implicit in the agreement to arbitrate. The American Arbitration Association (AAA) codifies this authority explicitly: Rule 37 of the AAA Commercial Arbitration Rules permits a tribunal to "take whatever interim measures it deems necessary, including injunctive relief and measures for the protection or conservation of property." JAMS Rule 24 likewise authorizes interim and conservatory measures.

Interim measures fall into four recognized categories under the UNCITRAL Model Law on International Commercial Arbitration (Article 17), which a growing number of U.S. states have adopted in whole or in part through the Revised Uniform Arbitration Act:

1. Preservation of assets — Orders preventing the dissipation or transfer of property that is the subject of the dispute.
2. Status quo maintenance — Directives freezing ongoing conduct to prevent the situation from materially changing before a hearing.
3. Evidence preservation — Orders protecting documents, data, or physical items from destruction or alteration.
4. Security for costs — Requirements that one party post a financial guarantee against potential cost liability.

Emergency arbitrator procedures, introduced by the AAA in 2006 and now embedded in the rules of JAMS, ICDR, and other major institutions, extend this authority to the pre-tribunal phase, allowing relief to be sought before a full panel is even appointed.

How it works

The procedural pathway for obtaining interim measures depends on whether a full tribunal has been constituted.

Phase 1 — Pre-constitution emergency relief. Under AAA Optional Rules for Emergency Measures of Protection, a party may apply for an emergency arbitrator simultaneously with or immediately after filing a demand for arbitration. The institution appoints an emergency arbitrator promptly upon receiving a complete application (AAA Emergency Rules, Rule E-2). The emergency arbitrator holds a hearing shortly after appointment unless circumstances require otherwise.

Phase 2 — Tribunal-issued interim measures. Once the full tribunal is constituted, it inherits plenary authority over interim relief. Applications may be made at any point during the proceedings. Under AAA Rule 37(a), the tribunal may condition interim measures on the posting of appropriate security by the requesting party — a safeguard against abuse of the mechanism.

Phase 3 — Judicial enforcement. Because arbitral interim orders lack the self-executing force of court injunctions, enforcement often requires a parallel court application. Under 9 U.S.C. § 9 (confirmation) and the inherent equity jurisdiction of federal district courts, parties may seek judicial confirmation of an interim award. Courts are split on whether interim measures constitute "awards" confirmable under the FAA, though the Second Circuit in Banco de Seguros del Estado v. Mutual Marine Office (344 F.3d 255, 2003) treated an interim award as confirmable, a position cited widely in subsequent proceedings.

A party seeking interim measures must typically demonstrate: (a) a likelihood of success on the merits, (b) irreparable harm absent the measure, (c) that the balance of hardships favors relief, and (d) that the measure is consistent with the public interest — criteria substantially parallel to the four-factor test for preliminary injunctions articulated by the U.S. Supreme Court in Winter v. Natural Resources Defense Council (555 U.S. 7, 2008).

Common scenarios

Interim measures arise with particular frequency in four dispute contexts:

• Commercial arbitration involving trade secrets — A departing employee or former partner uses confidential information; the claimant seeks an immediate order halting disclosure or use pending the hearing.
• Construction arbitration — One party threatens to remove equipment or materials from a project site during a payment dispute; preservation orders protect the physical subject matter of the claim.
• International arbitration — A foreign respondent begins transferring assets out of a jurisdiction reachable under the New York Convention; asset-freezing orders protect eventual award enforceability.
• Securities arbitration — FINRA Rule 13804 establishes an expedited proceeding for customers who allege improper transfer of funds, creating a parallel regulatory track alongside standard interim measure procedures.

Decision boundaries

Arbitral authority to issue interim measures is bounded by four structural limits.

Jurisdictional boundary. A tribunal cannot issue interim measures against a non-party. Courts, not arbitrators, hold that power. This distinction is particularly relevant in multi-party disputes where a third-party bank or custodian holds disputed assets.

Subject matter scope. The measure must relate to the subject matter of the arbitration. An arbitrator hearing a contract dispute cannot issue an order reaching conduct entirely outside the scope of the arbitration agreement.

Enforceability ceiling. An emergency arbitrator's order carries persuasive, not inherent, coercive authority. Compliance is largely voluntary until a court confirms it. This contrasts sharply with a court-issued temporary restraining order, which carries contempt sanctions as a built-in enforcement mechanism — a key distinction in arbitration vs. litigation analysis.

Waiver and sovereign immunity. In disputes involving government entities, interim measures face additional barriers. Sovereign immunity doctrines under the Foreign Sovereign Immunities Act (28 U.S.C. §§ 1602–1611) may block asset attachment even where a valid arbitration agreement exists, as the U.S. Supreme Court addressed in Republic of Argentina v. NML Capital, Ltd. (573 U.S. 134, 2014).

Emergency measures also do not toll or suspend the underlying arbitration process steps; the tribunal continues on its normal schedule regardless of interim proceedings.

References

• American Arbitration Association — Commercial Arbitration Rules (including Rule 37 and Emergency Rules)
• UNCITRAL Model Law on International Commercial Arbitration (2006 amendments, Article 17)
• Federal Arbitration Act, 9 U.S.C. §§ 1–16 (via Cornell LII)
• FINRA Rule 13804 — Expedited Proceedings for Temporary Injunctive Relief
• Revised Uniform Arbitration Act (2000) — Uniform Law Commission
• JAMS Arbitration Rules — Rule 24 (Interim and Conservatory Measures)
• Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602–1611 (via Cornell LII)