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Mr Arthur Lauvaux

Associate in International Arbitration - Gide Loyrette Nouel LLP

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Emergency Arbitration

I. Definition

1.

Emergency arbitration is a mechanism which "allows a disputing party to apply for urgent interim relief before an arbitration tribunal has been formally constituted".1

II. Legal framework

2.

Although several arbitral institutions have adopted specific rules for emergency arbitration in the field of international commercial arbitration,2 the spread of such mechanism to the field of investment arbitration remains quite confidential to date. For instance, neither the ICSID Arbitration Rules, nor the UNCITRAL Arbitration Rules contain provisions for the appointment of an emergency arbitrator.

3.

This being said, the SCC Rules (2017),3 the SIAC Investment Rules (2017),4 and the CIETAC International Investment Arbitration Rules (2017),5 all contain provisions for the appointment of an emergency arbitrator.

4.

The provisions on emergency arbitration in the SCC Rules (2017) do not distinguish between commercial and investment arbitration, and parties choosing to arbitrate under the SCC Rules are deemed to have agreed on the SCC Rules in force on the date of the filing of an application for the appointment of an emergency arbitrator.6

5.

The corresponding provisions in the SIAC Investment Rules (2017) require the express consent of both parties to apply.7 Although worded differently, the same also seems to be true for the CIETAC International Investment Arbitration Rules (2017).8

6.

The procedure to be followed under these three sets of rules is broadly similar. The appointment of an emergency arbitrator follows the filing, by the requesting party, of a written request to that end to the arbitral institution.9 Once appointed, the emergency arbitrator enjoys broad powers to conduct the proceedings,10 and is expected to render its decision in a matter of days,11 or weeks at the latest.12

III. Criteria for granting emergency relief

7.

To date, five decisions by emergency arbitrators appointed under the SCC Rules in investment arbitration cases have been published.13 Other unpublished decisions rendered under the SCC Rules have been reported,14 while no decision under the SIAC or CIETAC Rules have been reported. 

8.

In assessing whether the emergency relief sought should be granted, emergency arbitrators appointed under the SCC Rules have referred to various criteria,15 which include:

  • Prima facie jurisdiction of the tribunal;16
  • Prima facie case on the merits;17
  • Risk of irreparable/imminent harm;18
  •  Urgency;19
  • Proportionality of the measures sought.20

9.

Some tribunals have also discussed the necessity of the measures sought.21

IV. Specific issues

A. Consent to emergency arbitration

10.

Emergency arbitrators appointed under the SCC Rules have had to determine whether the State-parties to the applicable International Investment Agreement (IIA) could be found to have given their consent to the application of emergency arbitration provisions, although the version of the SCC rules applicable at the time of the conclusion of these instruments did not contain such provisions.22

11.

So far, emergency arbitrators, upon interpretation of the SCC Rules, have found in the affirmative.23

B. Cooling-off period

12.

Emergency arbitrators appointed under the SCC Rules have also had to determine whether they had jurisdiction to grant emergency measures, although the cooling-off period prescribed by the applicable IIA had not elapsed.24

13.

There again, emergency arbitrators have so far held that this does not prevent an application for emergency relief from being made.25

V. Binding effect and enforcement

14.

The decision of an emergency decision is binding on the parties,26 but may be amended or revoked at the request of a party by the emergency arbitrator itself,27 or by the arbitral tribunal once appointed.28

15.

Although the decision of the emergency arbitrator may take the form of an order or an award,29 it remains uncertain whether it can, in the latter case, be enforced as such under the New-York Convention.30

Bibliography

Alnaber, R., Emergency Arbitration: Mere Innovation or Vast Improvement, Arbitration International, Vol. 35, 2019, pp. 441-472.

Beisteiner, L., Chapter III: The Award and the Courts, To Be or Not to Be an Arbitrator – On the Nature of Emergency Arbitration, in Klausegger, C., Klein, P. et al. (eds.), Austrian Yearbook on International Arbitration 2020, pp. 289-332.

Brower, C.N., Meyerstein, A. and Schill, S.W., The Power and Effectiveness of Pre-arbitral Provisional Relief: The SCC Emergency Arbitrator in Investor-State Disputes, in Hober, K. et al. (eds.), Between East and West: Essays in Honour of Ulf Franke, Juyrisnet, 2010, pp. 62-78.

Chung, K., Emergency Arbitrator Procedure in Investment Treaty Disputes: To Be or Not To Be, Journal of World Investment & Trade, Vol. 20, 2019, pp. 98–145.

Dahlquist, J., Emergency arbitrators in investment treaty disputes, Kluwer Arbitration Blog, 10 March 2015.

Garimella, S.R. and Sooksripaisarnkit P., Chapter 5: Emergency Arbitrator Awards: Addressing Enforceability Concerns Through National Law and the New York Convention, in Fach Gomez, K. and Lopez-Rodriguez A.M. (eds.), 60 Years of the New York Convention: Key Issues and Future Challenges, Kluwer Law International, 2019, pp. 67-84.

Hanessian, G. and Dosman, E.A., Songs of Innocence and Experience: Ten Years of Emergency Arbitration, American Review of International Arbitration, Vol. 27, 2018, pp. 215-237.

Havedal Ipp, A., Urgency, Irreparable Harm and Proportionality: Seven Years of SCC Emergency Proceedings, Kluwer Arbitration Blog, 29 June 2017.

Koh, S.Y., The Use of Emergency Arbitrators in Investment Treaty Arbitration, ICSID Review, Vol. 31, Issue 3, 2016, pp. 534-548.

Lee, J., Is the Emergency Arbitrator Procedure Suitable for Investment Arbitration?, Contemporary Asia Arbitration Journal, Vol. 10, Issue 1, 2017, pp. 71-112.

Markert, L. and Rawal, R., Emergency Arbitration in Investment and Construction Disputes: An Uneasy Fit?, Journal of International Arbitration, Vol. 37, Issue 1, 2020, pp. 131-142.

Osadchiy, M., Emergency Relief in Investment Treaty Arbitration: A Word of Caution, Journal of International Arbitration, Vol. 34, Issue 2, 2017, pp. 239-256.

Pirozhkin, A., Emergency arbitrator's decisions in investment treaty disputes at the SCC (2014-2019), Arbitration Institute of the Stockholm Chamber of Commerce, 2020.

Shaughnessy, P.L., Chapter 32: The Emergency Arbitrator, in Shaughnessy, P.L. and Tung, S., (eds.), The Powers and Duties of an Arbitrator: Liber Amicorum Pierre A. Karrer, Kluwer Law International, 2017, pp. 339-348.

Sze Hyu Low, J., Emergency Arbitration: Practical Considerations, Asian Dispute Review, Vol. 22, Issue 3, 2020, pp. 109-114.

Wu, Q., Jurisdiction of Emergency Arbitrator in Investment Treaty Arbitration, Kluwer Arbitration Blog, 28 June 2019.

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