A French trader learns on a Friday that its counterparty, against which it holds a 4.1 million euro claim acknowledged in a settlement protocol, has just sold its main industrial asset and is preparing to move its cash to an entity outside the European Union. The contract contains an ICC clause. The arbitral tribunal does not yet exist and will not exist for two or three months. The question is not who is right on the merits, but who can order anything before Monday.
This page deals with that window, between the birth of the dispute and the constitution of the tribunal. It compares the two available routes, the emergency arbitrator under Appendix IV to the ICC Rules and the national judge, describes what each allows and forbids, gives the real cost, and sets out the reform taking effect on 1 January 2027 that changes how arbitrator and judge fit together.
1. The window an arbitration clause leaves open
Between the request for arbitration and transmission of the file to a constituted tribunal, six to twelve weeks commonly elapse, while the parties nominate their arbitrators, the Court confirms or appoints, and advances are called. That period is perfectly well known to organised debtors, and it is precisely the one they use. A misunderstood arbitration clause then works as a grace period offered to the party that wants to disappear.
Two instruments fill that window. The first is institutional: the emergency arbitrator provided for by Appendix IV to the 2026 ICC Rules, appointed within days to rule on an interim measure before the tribunal is constituted. The second is national: an application to the French court, which the existence of an arbitration agreement does not prevent, so long as the tribunal is not constituted, for an evidential, interim or conservatory measure (article 1449 of the code of civil procedure, applicable to international arbitration through article 1506).
These two routes are not competing in the sense that one must be chosen once and for all. They do not offer the same measures, do not bind the same persons and do not cost the same. The decision is taken in the light of the nature of the relief sought, the location of the assets and the identity of whoever holds them, which calls for a rapid analysis of the case rather than a preference in principle.
The ICC recorded 881 new cases under its Rules of Arbitration in 2025, with an average amount in dispute above 50 million dollars and a median close to 5 million. Set against those volumes, emergency arbitrator applications remain marginal, not because the need does not exist, but because the window closes before the decision to apply has been taken. The useful reaction time is measured in days, and most companies spend those days convening a committee.
2. The Appendix IV emergency arbitrator: two days, fifteen days
The mechanism is built for speed. On an application to the Secretariat, the President of the Court appoints an emergency arbitrator in principle within two days of receiving it. The emergency arbitrator sets a very short timetable, hears the parties, and issues an order within around fifteen days of receiving the file. The measure binds the parties, who undertake to comply with it, but it does not bind the tribunal once constituted, which may modify, discharge or annul it.
The mechanism assumes that the parties have not agreed otherwise and that the arbitration agreement is subject to the ICC Rules. It is excluded where the clause predates the entry into force of the provisions that created it, or where the parties have expressly excluded it, which is still found in old templates copied without review. Checking that point takes five minutes and saves a week spent on a closed route.
The real limit lies in what the emergency arbitrator can order. It has the power to enjoin, to do or not to do: to maintain a documentary credit line, not to call an on demand guarantee, not to dispose of an identified asset, to preserve evidence, to continue performing an ongoing contract. It has no power to attach, because coercion over property is a State monopoly. Where the aim is to freeze an account, the emergency arbitrator is the wrong interlocutor.
3. The order made without warning the party targeted
The 2026 Rules allow the emergency arbitrator to issue a preliminary order without prior notice to the party targeted, where warning that party would compromise the effectiveness of the measure. That is recognition of an obvious practical point: warning the person organising the disappearance of an asset amounts to firing the starting gun.
The mechanism is framed. The application and exhibits are transmitted immediately afterwards, the parties are heard without delay, and the order may be modified or discharged in the light of their observations. It is therefore not a final measure obtained in secret, but a surprise effect limited to the few days needed for the measure to take effect before being argued.
The value of this innovation is real, and its scope limited by the nature of the measure. An injunction not to dispose of an asset, made without notice and served afterwards, has deterrent value and lays the ground for later argument about bad faith. It does not physically immobilise property. For that, the judge is needed.
4. Opening the mechanism to non signatories
The second notable development in Appendix IV is that the mechanism is available against a party that did not sign the arbitration agreement, where the President of the Court considers, on the information in the application, that an arbitration agreement may bind it (article 1(2) of Appendix IV). The assessment is summary and provisional, and does not prejudge the jurisdiction the tribunal will later uphold.
The practical reach within corporate groups is considerable. The signatory is frequently a project subsidiary without substance, while the assets are held by the parent or a sister entity. Under the previous regime, emergency relief could target only the shell. It may now target the holder, subject to showing the elements that make extension of the arbitration agreement plausible.
That showing is the heart of the work. It rests on the non signatory’s involvement in the negotiation, performance or termination of the contract, along criteria French case law has long developed for groups of companies. An application that merely invokes membership of the same group will not succeed; one documented on effective participation has serious prospects.
5. What only the national judge can do
The dividing line is clear and it follows the monopoly on coercion. Conservatory attachments and judicial security interests fall to the courts of the State alone, and no arbitration stipulation changes that. Where the aim is to freeze a sum in a bank account, register a provisional mortgage or take security over a business, the route is national, immediately and exclusively.
The code of civil procedure organises that coexistence unambiguously. The existence of an arbitration agreement does not prevent a party, so long as the tribunal is not constituted, from applying to a court of the State for an evidential measure or an interim or conservatory measure, the judge ruling on evidential measures under article 145 and, in case of urgency, on interim or conservatory measures (article 1449). Article 1506 makes that text applicable to international arbitration, unless the parties agree otherwise.
Two advantages of the judge are often underestimated. The first is the possibility of proceeding on an ex parte application, without the other side being heard, where the conditions are met. The second is immediate execution by an enforcement officer, without any recognition phase. Faced with an ongoing dissipation of assets, that difference of a few days decides everything, and it explains why the right answer is frequently to go to the judge first and the emergency arbitrator afterwards, for what the judge cannot order.
Applying to the judge does not waive arbitration, provided the application is confined to the interim or conservatory measure sought. An application that strays into the merits does expose the party to challenge, and where that boundary lies is settled case by case.
6. The real cost of each route
Emergency arbitrator proceedings cost 50,000 dollars, paid to the ICC with the application, comprising 12,500 dollars of administrative expenses and 37,500 dollars of the emergency arbitrator’s fees and expenses (article 8(1) of Appendix IV and the scale annexed to the Rules). A 5,000 dollar portion is non refundable. The President of the Court may increase that amount in the light of the nature of the case and the work done. The figure of 40,000 dollars, still widely repeated in material available online, corresponds to an earlier scale.
To that must be added counsel’s fees, on a file prepared in a few days and demanding intense work. The total order of magnitude for a properly documented application therefore frequently exceeds the equivalent of 100,000 dollars, to be compared with the amount the measure protects. Below stakes of around a million, proportionality becomes hard to defend to one’s own finance director.
The French court route costs a fraction of that. An ex parte application or urgent interim proceedings, even run at speed by a specialist firm, are counted in tens of thousands of euros, not hundreds. The counterpart is geographical: a French measure takes effect on assets located in France, and extending it abroad requires local proceedings. The choice therefore depends first on the answer to a question of fact, namely where the assets are, and that answer governs everything else.
One last factor weighs on the choice and is rarely anticipated: emergency relief obtained leaves a trace in the rest of the proceedings. An injunction made against a party, even provisionally, shapes how the tribunal will come to view the case, and a rejected urgent application has the opposite effect. Taking this route means staking part of the credit available before the future tribunal, which is a further reason to choose it only on a solidly documented case.
7. What changes on 1 January 2027
Decree no. 2026-741 of 6 August 2026 changes how arbitrator and judge fit together on a point that directly concerns interim relief. In its new wording, article 1468 of the code of civil procedure maintains the tribunal’s power to order any conservatory or interim measure it considers appropriate, if need be under a penalty payment, the courts of the State remaining exclusively competent for conservatory attachments and judicial security interests, and expressly recognises its power to modify or supplement the measure it has ordered.
The decisive contribution lies in the third paragraph. Any party will be able to apply to the supporting judge for a conservatory or interim measure decided by the tribunal to be made provisionally enforceable. The judge rules under the accelerated procedure on the merits and grants the application, unless enforcement of the measure is liable seriously to prejudice the rights of one of the parties or the measure is contrary to public policy. The judgment may be appealed within fifteen days of service, and it has no res judicata effect on the merits.
That provision applies to international arbitration through article 1506, in its wording also derived from the decree. It fills a long standing weakness: a measure ordered by an arbitral tribunal had, in French law, no enforceability of its own, so a recalcitrant party could ignore it while waiting for the award. It concerns only measures of a constituted tribunal, however, and not the emergency arbitrator’s order, which leaves the window described at the start of this page intact.
Emergency strategy will therefore deserve review for cases whose tribunal is constituted after 1 January 2027. The decree’s application timetable follows several keys depending on the subject matter, which makes examination of each case necessary rather than the application of a single rule.
Frequently asked questions
Can you apply to the emergency arbitrator and the French judge at the same time
Yes, and that is often the right configuration where the measures sought differ. The French judge is asked for what it alone can order, a conservatory attachment or judicial security, and the emergency arbitrator for what the judge would grant less readily, an injunction to do or not to do addressed to a party bound by the clause. Consistency between the two applications must be carefully managed, since contradictory or redundant requests weaken both.
Is an emergency arbitrator’s order enforceable in France
It is not an award and does not benefit from the enforcement regime applicable to awards. Its force comes from the parties’ undertaking to comply and from the cost of refusing, since the tribunal once constituted will draw the consequences of non compliance, in particular on costs and in assessing procedural conduct. Where the measure must bind a third party or bear on property, the national route remains necessary.
What happens if the tribunal is constituted in the meantime
The emergency arbitrator proceedings end, and the application is brought before the tribunal, which has power to order interim and conservatory measures. The tribunal is not bound by the emergency order and may modify or discharge it. In practice it most often maintains it where circumstances have not changed, but that continuity is not guaranteed and the application must be renewed before it.
Our ICC clause dates from 2015, is the emergency arbitrator available to us
That depends on the date of the arbitration agreement and on its drafting. The mechanism does not apply where the agreement predates the entry into force of the provisions that created it, nor where the parties have excluded it. A clause copied from an old template may contain an exclusion nobody remembers. The check is quick, and it must be done before building a strategy on that route.
Is the 50,000 dollar payment recoverable if the application is refused
Only 5,000 dollars are expressly non refundable, as administrative expenses. The fate of the rest depends on the emergency arbitrator’s decision on the costs of the proceedings, which it allocates between the parties in its order, and on the tribunal’s later decision on the costs of the arbitration. A refused application therefore carries a financial cost, which justifies assessing the prospects seriously before bringing it.