Emergency Arbitrator Proceedings under ISTAC Rules: Urgent Interim Protection in Turkish Arbitration

Introduction

Commercial disputes do not always develop at a pace that allows parties to wait for the constitution of an arbitral tribunal. Assets may be transferred, confidential information may be disclosed, goods may deteriorate, bank guarantees may be called, corporate decisions may be implemented or critical evidence may disappear before the sole arbitrator or arbitral tribunal is appointed.

The Emergency Arbitrator Proceedings under ISTAC Rules provide a rapid institutional mechanism for parties requiring urgent interim protection before the main arbitral tribunal receives the case file. The procedure is administered by the Istanbul Arbitration Centre, commonly known as ISTAC, and is governed by the ISTAC Emergency Arbitrator Rules contained in Appendix 1 to the ISTAC Arbitration Rules.

Under the current institutional framework, the President of the ISTAC Board of Arbitration appoints the emergency arbitrator within two working days after receipt of a compliant application. The emergency arbitrator must then issue a decision within seven days after receiving the case file, unless that period is extended in accordance with the Rules.

The mechanism may be particularly valuable in construction, energy, corporate, banking, international trade, technology, distribution and joint venture disputes. Nevertheless, an emergency arbitrator application should not be treated as a routine procedural step. The applicant must establish genuine urgency, identify the precise relief required and demonstrate why waiting for the constitution of the main tribunal would materially undermine the effectiveness of arbitration.

This guide explains the scope of the ISTAC Emergency Arbitrator Rules, the application procedure, appointment and challenge of the emergency arbitrator, the types of interim measures that may be requested, the relationship between emergency arbitration and Turkish courts, and the practical considerations relevant to enforcement.

What Is an Emergency Arbitrator?

An emergency arbitrator is an independent and impartial decision-maker appointed before the constitution of the arbitral tribunal to decide a request for urgent interim protection.

The emergency arbitrator does not finally resolve the merits of the dispute. The emergency arbitrator’s role is limited to determining whether temporary protection should be granted until the main arbitral tribunal is constituted and has an opportunity to reconsider the matter.

An emergency arbitrator may become necessary where a party cannot safely wait for the ordinary appointment process.

Examples may include situations in which:

• A contractual counterparty is transferring assets;
• A shareholder is attempting to complete a prohibited share transfer;
• A bank guarantee is about to be called;
• Confidential information is about to be disclosed;
• Evidence is at risk of destruction;
• Goods require urgent preservation;
• A project site or essential equipment is at risk;
• A party threatens to terminate a contract immediately;
• A corporate transaction will be completed before the tribunal is constituted;
• The contractual status quo must be preserved temporarily.

The precise relief available depends on the arbitration agreement, the ISTAC Rules, the law of the seat, the nature of the dispute and the emergency arbitrator’s jurisdiction.

Why Emergency Arbitration Is Important

Traditional arbitration requires several procedural steps before the arbitral tribunal becomes operational. The claimant may need to submit a Request for Arbitration, the respondent may need time to answer, and the parties or institution must appoint the arbitrator or tribunal.

In a three-member arbitration, each party may nominate one arbitrator, after which the co-arbitrators or institution appoints the tribunal chair. Even where the process is conducted efficiently, urgent commercial harm may arise before the tribunal is fully constituted.

Emergency arbitration closes this procedural gap. It allows a party to request urgent measures without waiting for the ordinary tribunal-appointment process.

The procedure does not replace the main arbitration. It protects the effectiveness of the future proceedings by preserving assets, evidence, contractual rights or an existing factual situation.

Scope of the ISTAC Emergency Arbitrator Rules

The ISTAC Emergency Arbitrator Rules generally apply where the parties have agreed to arbitration under the ISTAC Arbitration Rules and have not expressly excluded the emergency arbitrator mechanism in writing.

The official ISTAC model arbitration clause states that disputes will be finally resolved under the ISTAC Arbitration Rules. ISTAC identifies the exclusion of the Emergency Arbitrator Rules as an optional additional provision. Accordingly, parties wishing to exclude emergency arbitration should state expressly that the Emergency Arbitrator Rules will not apply.

The Emergency Arbitrator Rules apply to applications submitted before the case file is transmitted to the sole arbitrator or arbitral tribunal under the ordinary ISTAC proceedings. Once the file has been transmitted to the main tribunal, an emergency arbitrator can no longer be appointed; the request for interim protection should then be submitted to the constituted tribunal or, where legally appropriate, to a competent court.

The Rules apply to parties that are signatories to the arbitration agreement relied upon in the application and to their successors. They do not automatically bind unrelated third parties merely because those parties are commercially connected with the dispute.

This limitation is important where the requested measure concerns:

• A bank that did not sign the arbitration agreement;
• A subsequent purchaser;
• A trade registry;
• A public authority;
• A subcontractor;
• A corporate affiliate;
• A third-party custodian of assets.

Where effective relief requires an order binding a non-party, a court application may be more appropriate or may need to be pursued in parallel.

Emergency Arbitration Is an Opt-Out Mechanism under ISTAC Rules

The ISTAC framework adopts an opt-out structure.

Where the parties agree to ISTAC arbitration, the Emergency Arbitrator Rules apply unless the parties expressly agree in writing that they will not apply. This approach reduces the need for parties to insert a separate emergency-arbitrator clause into every commercial agreement.

Nevertheless, contracting parties should consider the mechanism consciously.

Emergency arbitration may be beneficial where:

• Urgent contractual protection may be required;
• The parties prefer confidentiality;
• The dispute is likely to concern matters within the parties’ control;
• A specialist decision-maker would be valuable;
• The parties operate in different jurisdictions;
• An institutional response is preferred over court litigation.

Exclusion may be considered where:

• Court orders will almost always be necessary against third parties;
• The transaction concerns property or rights subject to mandatory judicial authority;
• The parties prefer exclusive recourse to national courts for interim relief;
• The additional emergency procedure may create duplication;
• The applicable law creates significant enforcement uncertainty.

A generic exclusion should not be inserted without analysing the transaction.

When Can an Emergency Arbitrator Application Be Made?

The application must be submitted before the case file is transmitted to the sole arbitrator or arbitral tribunal.

The applicant is not required to have already submitted a Request for Arbitration or Statement of Claim. This allows a party to seek urgent protection before the full merits submission has been prepared.

However, the emergency procedure cannot remain independent from the main arbitration indefinitely.

If the applicant has not submitted a Request for Arbitration or Statement of Claim within 15 days after the ISTAC Secretariat receives the emergency application, the President of the Board will terminate the emergency arbitrator’s mandate. The emergency decision will consequently lose its continuing contractual effect under the mechanism.

The applicant should therefore prepare both:

1. The emergency application; and
2. The Request for Arbitration or Statement of Claim required to preserve the procedure.

The emergency application should not be filed before counsel has confirmed that the main arbitration can be commenced within the 15-day period.

How to Apply for an ISTAC Emergency Arbitrator

The application is submitted to the ISTAC Secretariat. ISTAC’s official guideline states that the application may be sent electronically to the institutional email address specified for arbitration applications. The applicant must also pay the required emergency arbitrator fees and costs and submit proof of payment.

A complete application should contain the information required by Article 2 of the Emergency Arbitrator Rules.

This includes:

• Full names, titles and contact details of the parties;
• Contact details of the parties’ representatives;
• An explanation of the dispute to be resolved in arbitration;
• The reasons why interim protection is required;
• The relevant contracts;
• A copy of the arbitration agreement;
• Necessary supporting documents;
• A clear statement of the interim measure requested;
• Statements concerning the seat of arbitration;
• The proposed or agreed language of arbitration;
• The applicable law;
• Copies of any Request for Arbitration, Statement of Claim, Answer or Defence already submitted;
• Proof of payment of the emergency arbitrator costs.

The application should be prepared as a focused emergency submission rather than as an abbreviated version of the entire arbitration case.

Language of the Emergency Application

The application must be submitted in the language of arbitration agreed by the parties.

Where the parties have not selected a language, the application must be submitted in the language of the arbitration agreement. If the arbitration agreement has been executed in several languages, one of those languages may be used.

Language selection may affect the speed of the proceedings. Documents in another language may require translation, particularly where the emergency arbitrator cannot evaluate them efficiently without an accurate translated version.

The applicant should prioritise the translation of:

• The arbitration clause;
• The operative contractual provisions;
• The termination or default notice;
• The guarantee or security instrument;
• The correspondence establishing urgency;
• The documents proving threatened harm;
• The requested form of order.

Submitting a large volume of untranslated material may reduce rather than improve the effectiveness of an urgent application.

Appointment of the Emergency Arbitrator

The President of the ISTAC Board appoints the emergency arbitrator within two working days after the Secretariat receives the application.

The emergency arbitrator must be independent and impartial and must remain so throughout the appointment. Upon accepting the mandate, the emergency arbitrator signs a declaration of independence and impartiality and confirms the ability to allocate sufficient time to the proceeding.

Once appointed, the Secretariat:

• Notifies the parties;
• Sends the application and its attachments to the opposing party;
• Transmits the case file to the emergency arbitrator.

Following transmission, the parties submit their pleadings, evidence and written communications directly to the emergency arbitrator while copying the ISTAC Secretariat.

The emergency arbitrator may not ordinarily serve as an arbitrator in the subsequent merits proceedings arising from the same dispute. The same individual may serve on the main tribunal only if the parties agree after the emergency decision has been issued.

This rule protects both actual impartiality and the appearance of impartiality. The emergency arbitrator may have formed preliminary views based on an accelerated and incomplete evidentiary record.

Challenging the Emergency Arbitrator

A party wishing to challenge the emergency arbitrator must submit the challenge to the ISTAC Secretariat within three days after notification of the appointment.

If the relevant circumstances become known later, the challenge must be filed within three days after the challenging party becomes aware of those facts.

Potential grounds may include:

• Lack of independence;
• Lack of impartiality;
• Undisclosed professional relationships;
• Financial interests;
• Prior involvement in the dispute;
• A conflict involving counsel, parties or affiliates.

The short three-day period reflects the urgency of the proceeding. Parties must conduct immediate conflict checks after the appointment notification is received.

A tactical or unsupported challenge may damage credibility. The challenging party should identify the specific circumstances, explain when they became known and submit supporting evidence.

Seat and Place of the Emergency Proceedings

Where the parties have agreed on the seat of arbitration, that seat is also the legal place of the emergency interim-measure proceedings.

Where the parties have not selected a seat, Istanbul is treated as the place of the emergency proceedings. The emergency arbitrator may nevertheless hold meetings or hearings at any location considered appropriate.

The distinction between the legal place and the physical hearing venue is important.

A remote hearing or meeting conducted from another country does not necessarily change the legal place of the emergency procedure. The legal seat may influence:

• The procedural law;
• Judicial assistance;
• The treatment of the emergency decision;
• Applications for enforcement;
• The authority of the future main tribunal.

Parties should therefore determine the seat expressly when drafting the arbitration clause.

Procedural Timetable

After receiving the file, the emergency arbitrator consults the parties and establishes a procedural timetable within two days.

The timetable may address:

• The respondent’s answer;
• Further evidence;
• Reply submissions;
• Hearing arrangements;
• Security;
• The date for the decision.

The emergency arbitrator decides the admissibility of the application and the existence of jurisdiction to grant interim protection.

Because the decision must ordinarily be issued within seven days, the timetable is necessarily compressed. A respondent may receive only a short period to answer, while the applicant may have limited opportunity to submit additional material.

Both parties should therefore organise their legal and factual positions immediately.

Is a Hearing Required?

A hearing is not automatically required.

The emergency arbitrator may decide the application solely on the written record unless a hearing is considered necessary. The emergency arbitrator may also request further information or documents from either party.

A documents-only procedure may be suitable where:

• The relevant facts are recorded in contracts and correspondence;
• The urgency is extreme;
• The parties agree on the material chronology;
• No witness credibility issue arises;
• The requested measure is legally narrow.

A short remote hearing may be useful where:

• Factual allegations are disputed;
• Technical explanation is required;
• Witness or expert evidence is necessary;
• The requested measure is commercially severe;
• The respondent raises a substantial jurisdictional objection.

The emergency arbitrator must conduct the process fairly and impartially and must protect each party’s right to be heard.

Can an ISTAC Emergency Decision Be Made Without Notice?

The ISTAC Emergency Arbitrator Rules are not designed as a purely ex parte process.

The Secretariat sends the emergency application and its attachments to the opposing party, and the emergency arbitrator must protect both parties’ right to be heard.

This differs from certain court applications in which a judge may grant a provisional measure without first hearing the opposing party where immediate protection is necessary. Under the Turkish Code of Civil Procedure, a court may grant an interim injunction without hearing the other party where immediate protection is required.

Where giving notice would itself defeat the purpose of the measure—for example, by allowing assets to be transferred before protection is imposed—a court application may provide a more suitable route.

What Must the Applicant Prove?

The ISTAC Rules do not establish an exhaustive multi-part test identical to the tests used in every other arbitration institution or national court.

The emergency arbitrator must assess the admissibility of the application, jurisdiction, the nature and urgency of the request and the circumstances of the case. The arbitrator may grant the interim measure considered appropriate and may require security.

A well-prepared applicant should nevertheless address the following practical questions:

Prima Facie Jurisdiction

The applicant should demonstrate that an arbitration agreement apparently exists, that it refers disputes to ISTAC arbitration and that the dispute falls within its scope.

Genuine Urgency

The applicant should explain why the requested protection cannot wait until the main tribunal is constituted.

Risk of Serious Harm

The application should identify the specific harm that may occur without immediate intervention.

Inadequacy of Later Relief

The applicant should explain why a future damages award would not provide sufficient protection or why recovery would become materially more difficult.

Proportionality

The requested measure should not impose a burden substantially greater than necessary to protect the applicant’s legitimate interests.

Connection to the Merits

The interim measure should support or preserve rights that will be determined in the main arbitration.

Security

The applicant should be prepared to provide appropriate security where the emergency arbitrator considers this necessary.

These are practical advocacy considerations derived from the urgent and interim nature of the mechanism rather than a rigid statutory checklist expressly stated in the Rules.

Types of Interim Measures That May Be Requested

The Emergency Arbitrator Rules grant broad authority to order interim measures considered appropriate in light of the nature and circumstances of the application.

Depending on the dispute, the applicant may request an order:

• Requiring preservation of assets;
• Preventing disposal of contractual property;
• Preserving evidence;
• Restricting disclosure of confidential information;
• Maintaining the status quo;
• Temporarily suspending termination;
• Preventing a prohibited share transfer;
• Requiring preservation of goods;
• Protecting intellectual property;
• Requiring continued access to project data;
• Securing disputed property;
• Directing a party not to call a contractual guarantee;
• Requiring temporary contractual performance.

The emergency arbitrator must remain within the scope of the arbitration agreement and cannot ordinarily impose effective obligations on non-signatories.

The requested relief should be drafted precisely. A vague request to “protect all rights” is unlikely to provide a workable basis for an enforceable decision.

The Seven-Day Decision Period

The emergency arbitrator must ordinarily issue the decision within seven days after receiving the case file.

The President of the ISTAC Board may extend the period upon a reasoned request from the emergency arbitrator or on the President’s own initiative where considered appropriate.

The official decision must be:

• In writing;
• Dated;
• Signed;
• Reasoned;
• Identified with the place of the interim proceedings;
• Notified to the parties and the Secretariat.

A reasoned decision is particularly important because it allows the parties, the future tribunal and potentially a competent court to understand the factual and legal basis of the measure.

Binding Effect of the Emergency Decision

An emergency arbitrator’s decision is binding on the parties, and the parties undertake to comply without delay.

The binding effect arises from the parties’ agreement to the ISTAC Rules.

However, binding contractual effect should be distinguished from compulsory enforcement against assets or third parties. The rules may bind the parties, but coercive implementation may require assistance from a national court or enforcement authority.

The enforceability of a particular emergency decision must be assessed according to:

• The law of the seat;
• The legal character of the decision;
• The wording of the order;
• The location of assets;
• The identity of the person against whom relief is sought;
• Applicable national procedural law.

The Turkish Code of Civil Procedure permits a court, where a valid arbitration agreement exists, to declare an interim measure issued by an arbitrator or arbitral tribunal enforceable. It also regulates circumstances in which parties may apply to courts for interim protection during arbitration.

Whether a particular emergency arbitrator decision falls within the relevant statutory enforcement mechanism may require case-specific legal analysis. For this reason, a party requiring immediate coercive action—especially against a third party—should evaluate court relief in parallel.

Can the Emergency Decision Be Modified?

Before the file is transmitted to the main tribunal, the emergency arbitrator may modify or terminate the decision upon a party’s reasoned request where the underlying facts or circumstances have changed.

After the main tribunal is constituted, that tribunal is not bound by the emergency arbitrator’s conclusions.

The sole arbitrator or arbitral tribunal may:

• Confirm the emergency measure;
• Modify it;
• Terminate it;
• Replace it with another measure;
• Reconsider related procedural steps.

The main tribunal may act upon a party’s request or on its own initiative.

The emergency decision therefore does not prejudge the final merits.

A preliminary finding that the applicant has demonstrated an apparent contractual right does not prevent the main tribunal from reaching a different conclusion after full pleadings, evidence and hearings.

When Does the Emergency Decision Cease to Be Binding?

Under the ISTAC Rules, the decision may cease to bind the parties where:

• The emergency arbitrator’s mandate is terminated because the applicant failed to commence the main arbitration within 15 days;
• A challenge to the emergency arbitrator is accepted;
• The final arbitral award is issued, unless the main tribunal expressly decides otherwise;
• The arbitration is terminated under the applicable ISTAC Arbitration Rules.

The main tribunal may also modify or terminate the measure after receiving the file.

An applicant should therefore not assume that emergency protection will continue automatically until voluntary compliance or enforcement is completed.

Relationship between Emergency Arbitration and Turkish Courts

An emergency arbitrator application does not prevent either party from requesting an interim measure from a competent court before or after the emergency application.

The ISTAC Rules expressly state that a court application is not incompatible with the arbitration agreement and does not constitute a waiver of arbitration or of the right to apply for an emergency arbitrator.

Turkish domestic arbitration law also recognises a relationship between arbitral interim measures and judicial assistance. Article 414 of the Code of Civil Procedure allows the arbitral tribunal to order interim measures and permits court intervention in defined circumstances, including where timely or effective action by the tribunal or another authorised person is not possible.

A court application may be preferable where:

• Ex parte relief is necessary;
• The measure concerns a third party;
• Coercive enforcement is immediately required;
• Assets are controlled by banks or registries;
• The emergency arbitrator lacks practical jurisdiction over the target;
• Physical seizure or official registration is required;
• The relief concerns evidence held by a non-party.

Emergency arbitration may be preferable where:

• Confidentiality is important;
• The dispute is technically specialised;
• The measure primarily concerns obligations between the contracting parties;
• The parties operate in different jurisdictions;
• The applicant seeks a rapid reasoned decision from a specialist arbitrator;
• The commercial relationship would be harmed by immediate court litigation.

The two mechanisms may complement rather than exclude each other.

Costs of the Emergency Proceedings

Emergency arbitration costs consist of:

• ISTAC’s administrative costs;
• The emergency arbitrator’s fee;
• The emergency arbitrator’s expenses;
• The parties’ own legal and procedural expenses.

The applicant must pay the required deposit and submit proof of payment with the application. If proof of payment is not submitted, the application may be dismissed by the Secretariat.

The applicable fee schedule should be verified directly with ISTAC at the time of filing because institutional costs and fee scales may be revised.

The emergency arbitrator determines the allocation of the emergency proceeding’s costs between the parties. The main tribunal may later modify the emergency arbitrator’s costs decision upon a party’s request.

Common Mistakes in ISTAC Emergency Arbitrator Applications

Emergency applications frequently fail because of poor preparation rather than absence of a potentially valid claim.

Common mistakes include:

Failing to Demonstrate Urgency

The applicant describes the underlying breach but does not explain why the tribunal’s constitution cannot be awaited.

Requesting Final Relief

Emergency arbitration is intended to provide temporary protection. A request effectively determining the entire merits may be inappropriate.

Seeking Relief against a Non-Party

The emergency arbitrator’s jurisdiction is based on consent and generally extends only to parties bound by the arbitration agreement.

Submitting Excessive Documentation

A large and disorganised file may obscure the decisive facts in a procedure lasting only a few days.

Failing to Prepare the Main Arbitration

The applicant overlooks the requirement to commence the main arbitration within 15 days.

Ignoring Enforcement

The applicant obtains an order that cannot be implemented effectively in the jurisdiction where the relevant assets or actors are located.

Using Vague Wording

The requested order is not sufficiently precise to identify what the respondent must do or refrain from doing.

Failing to Offer Security

Where the requested measure may expose the respondent to significant loss, failure to address security may weaken the application.

Practical Strategy for Applicants

An applicant should prepare:

1. A clear chronology limited to urgent events;
2. The arbitration clause and jurisdictional basis;
3. The exact provisional relief requested;
4. Evidence demonstrating urgency;
5. Evidence showing threatened harm;
6. An explanation of why damages are insufficient;
7. A proportionality analysis;
8. A proposal concerning security;
9. A draft form of order;
10. An enforcement strategy;
11. The Request for Arbitration or Statement of Claim.

The application should answer three questions immediately:

• What is about to happen?
• Why will it cause material harm?
• What precise order is necessary before the main tribunal is constituted?

Practical Strategy for Respondents

A respondent should not use the accelerated timetable as a reason to provide a purely general denial.

The response should address:

• Jurisdiction;
• Admissibility;
• Absence of urgency;
• Lack of threatened harm;
• Availability of damages;
• Disproportionality;
• Applicant-caused delay;
• Failure to comply with the contract;
• Effect on third parties;
• Appropriate security;
• A narrower alternative measure.

The respondent may also argue that the applicant created the alleged urgency by waiting unnecessarily before filing. A party aware of the relevant event for several months may have difficulty explaining why protection suddenly became necessary within days.

Frequently Asked Questions

Does ISTAC emergency arbitration apply automatically?

It generally applies where the parties agreed to ISTAC arbitration unless they expressly excluded the Emergency Arbitrator Rules in writing.

Must the main arbitration already have commenced?

No. The applicant may submit an emergency application before filing the Request for Arbitration or Statement of Claim. The main case must then be commenced within 15 days after the Secretariat receives the application.

How quickly is the emergency arbitrator appointed?

The President of the ISTAC Board appoints the emergency arbitrator within two working days after receipt of the application.

How quickly is the decision issued?

The decision must ordinarily be issued within seven days after the emergency arbitrator receives the file, subject to a possible extension under the Rules.

Is a hearing mandatory?

No. The emergency arbitrator may decide the application solely on documents unless a hearing is considered necessary.

Is the emergency decision binding?

Yes. It is binding on parties that consented to the mechanism, although compulsory enforcement may require separate judicial analysis.

Can the main tribunal change the decision?

Yes. The main tribunal is not bound by the emergency decision and may modify or terminate it.

Can a party still apply to a Turkish court?

Yes. The ISTAC Rules expressly preserve the right to request judicial interim protection and state that doing so does not waive arbitration.

Can an emergency arbitrator issue an ex parte decision?

The ISTAC procedure protects the opposing party’s right to be heard and provides for notification of the application. Where relief without prior notice is essential, a competent court may provide a more appropriate mechanism.

Conclusion

Emergency Arbitrator Proceedings under ISTAC Rules provide an effective mechanism for obtaining urgent interim protection before the sole arbitrator or arbitral tribunal is constituted.

The procedure is designed for speed. The emergency arbitrator is appointed within two working days, establishes a procedural timetable within two days after receiving the file and ordinarily issues a reasoned decision within seven days.

The mechanism applies unless the parties have expressly opted out in writing. It is available before the file is transmitted to the main tribunal, and the applicant does not need to have already filed the Request for Arbitration or Statement of Claim. However, the main arbitration must be commenced within 15 days after receipt of the emergency application.

The emergency arbitrator may grant appropriate interim measures, require security and conduct the process on documents or through a hearing. The decision binds the parties, but the future sole arbitrator or tribunal may modify or terminate it.

Emergency arbitration does not eliminate the role of national courts. Court relief may remain necessary where the measure must bind third parties, requires coercive enforcement or must be issued without prior notice.

A successful application therefore requires more than proving a contractual breach. The applicant must demonstrate immediate risk, formulate precise provisional relief, present focused evidence and consider enforcement from the beginning.

For companies involved in commercial transactions connected with Turkey, a carefully drafted ISTAC arbitration clause and an early emergency-response strategy may prevent irreversible harm and preserve the practical effectiveness of the future arbitral award.