A RISING STAR: THE EMERGENCY ARBITRATOR
BERNARDO CARTONI1
Abstract: In this article, after a brief overview about the interim
measures, the author examines the matter of the Emergency
Arbitrator provisions by comparing six sets of rules among famous
arbitral institutions. In particular, the article deals with procedures of
application, appointment and decision. The article also deals with the
issue of recognition and enforcement of an Emergency Arbitrator’s
decision. The author underlines that more and more arbitral
institution are adopting provision about the Emergency Arbitrator.
In arbitration proceedings, the Claimant may fear that the
Respondent could conceal its assets and it is not possible (or it is not
recommendable) to wait for the final award.
This need can be satisfied by a provisional decision, usually called
“interim measure”.
Under UNCITRAL Arbitration Rules 2010 (art. 26) a party can apply
to the arbitral tribunal to obtain an order to maintain or restore the
status quo pending the dispute or to take action that would prevent a
current or imminent harm or prejudice to the arbitral process or
preserve assets or relevant and material evidence. The requesting
party shall demonstrate that there is a reasonable possibility that the
1
FCIArb, admitted to the Bar of Rome (Italy) and Warsaw (Poland). Founder and partner
of Kancelaria Prawnicza Bernardo Cartoni i Wspólnicy.
Electronic copy available at: http://ssrn.com/abstract=2710552
requesting party will succeed on the merits (fumus boni iuris) and
that – if the measure is not ordered – the harm is not adequately
reparable by an award of damages (periculum in mora). The arbitral
tribunal may modify an interim measure and may require the
requesting party to provide appropriate security, because such a
party is liable for any costs and damages caused by the measure.
There is no provision about enforcement of the order, so the party
can choose to go before a Court in order to request an interim
measure (art. 26.9) and this can be useful, because an order not in
form of an award surely cannot be enforced under the New York
Convention 1958.
Under English Arbitration Law 1996, section 39 says that the parties
can agree that the tribunal shall have power to make provisional
awards (“for the payment of money or the disposition of property as
between the parties [and] an interim payment on account of the costs
of arbitration”, sec. 39 (2) (a) (b)) and sec. 38 (4) and (6) says that
the tribunal may give directions in order to preserve any relevant
evidence. These orders can be enforced by the Court on the basis of
sec. 42.
Art. 25 LCIA Rules 2014 provides for interim measures and allows a
party (with the arbitral tribunal permission) to apply to a Court for
such measures after the constitution of the arbitral tribunal and until
the delivery of the final award.
Chinese Arbitration Law 1994 (art. 28) says that “a party may apply
for property preservation if it may become impossible or difficult for
the party to execute the award due to an act of the other party or
other causes. If a party applies for property preservation, the
arbitration commission shall submit the party’s application to the
people’s court in accordance with the relevant provisions of the Civil
Electronic copy available at: http://ssrn.com/abstract=2710552
Procedure Law”. CIETAC Rules 2012 say that “where a party applies
for the preservation of property, CIETAC shall forward the party’s
application for a ruling to the competent court designated by that
party” (art. 21.1) and “at the request of a party, the arbitral tribunal
may grant any interim measure it deems necessary or proper … the
grant of an interim measure by the arbitral tribunal may take the form
of a procedural order or an interlocutory award”.
So, we can infer that – nowadays – a party can obtain a provisional
measure granted directly by the arbitral tribunal or by a state Court.
But what can the Claimant do if it is not possible (or it is not
recommendable) to wait for the constitution of the arbitral tribunal?
In the past, the Claimant – more or less - had no choice but to go
before the competent Court2.
In recent years, some arbitral institutions3 have created a new figure:
the Emergency Arbitrator.
The Emergency Arbitrator (that is a sole arbitrator, not a panel of
arbitrators) has only to deal with the application of an interim
measure, when the arbitral tribunal is not appointed yet.
After the decision on such issue, the Emergency Arbitrator has
terminated his (or her) mandate. This procedure “improves quick
access to justice in a private setting”4.
2
For an overview on the alternative tools, see James Hosking, Erin Valentine, Chaffetz
Lindsey, “Pre-arbitral emergency measures of protection: new tools for an old problem”,
in Commercial Arbitration 2011: New developments and strategies for efficient, cost-
effective dispute resolution, now available on http://www.chaffetzlindsay.com/wp-
content/uploads/2011/10/000954671.PDF.
3
This article does not examine all the relevant Rules. For other institutional rules, see Tod
Gamlen and Christina Wong, “Emergency Relief in international arbitration”, in
www.bakermckenzie.com/files/pubblication/8b98cf-47- a8cd-44a2-b080- d473e55a6423/;
see also Raja Bose and Ian Meredith, “Emergency Arbitration Procedures: A Comparative
Analysis”, in International Arbitration Law Review, 2012, Issue 5, pp. 186-194.
3
One of the first arbitral institutions that has provided for the
Emergency Arbitrator is the ICC.
In ICC Rules 2012, art. 29 says: “A party that needs urgent interim or
conservatory measures that cannot await the constitution of an
arbitral tribunal (“Emergency Measures”) may make an application
for such measures pursuant to the Emergency Arbitrator Rules in
Appendix V. Any such application shall be accepted only if it is
received by the Secretariat prior to the transmission of the file to the
arbitral tribunal pursuant to Article 16 and irrespective of whether the
party making the application has already submitted its Request for
Arbitration”. Art. 29.2 says that the decision “shall take the form of an
order”, this means that the decision shall not be recognized and
enforced under New York Convention 19585.
The Emergency Arbitrator will be appointed by the President of the
ICC Court as soon as possible, “normally within two days from the
Secretariat’s receipt of the Application” (Appendix V art. 2.1) and he
has to make his decision, in writing and reasoned, “no later than 15
days from the date on which the file was transmitted to the
emergency arbitrator” (App. V art. 6.3). The application could be
made even before the Request for Arbitration, but “if a Request for
Arbitration has not been received by the Secretariat from the
applicant within 10 days of the Secretariat’s receipt of the Application”
4
Sonia Bjorkquist and Eric Morgan, “The New Emergency Arbitration Rules of the ICC”, in
www.osler.com/uploadedFiles/our_people/profiles/M/the-new-emergency-arbitration-
rules-of-the-ICC/.
5
An author says that enforceability depends “on the treatment given to orders in support
of arbitration according to the relevant state law” (Peter Godwin, “The new ICC
Emergency Arbitrator Procedure – an effective tool in international arbitration?”, in Japan
dispute avoidance newsletter, number 111, December 2011.
4
the President shall terminate the emergency proceedings (App. V art.
1.6)6.
Some months later, also the Swiss Chambers’ Arbitration Institution
provided for an emergency relief (art. 43), the time for the decision is
15 days; art. 43 does not prescribe any particular form but we can
argue (from the reference to art. 26) that the decision shall be in the
form of an interim award. Also in these Rules, if the Notice of
Arbitration has not been received in the following 10 days from the
application, the emergency relief proceedings will be terminated (art.
43.3).
Also Hong Kong International Arbitration Centre Rules 2013 have
provided for emergency relief. The matter is dealt with in art. 23.1
and in schedule 4.
Under HKIAC Rules, it is not possible to apply for an emergency
measure before the Notice of Arbitration (schedule 4.1), HKIAC will
appoint the Emergency Arbitrator within 2 days “after receipt of both
the Application and the Application Deposit” (schedule 4.5) and the
Emergency Arbitrator will serve his decision within 15 days “from the
date on which HKIAC transmitted the file to the Emergency Arbitrator”
(schedule 4.12). Such decision will be in writing, summarily reasoned,
dated and signed by the Emergency Arbitrator (schedule 4.14).
HKIAC Rules do not provide for a particular form, but – considering
that schedule 4.24 says “The Emergency Arbitrator shall make every
reasonable effort to ensure that an Emergency Decision is valid” –
we can argue that such decision shall be in form of an award,
especially if it has to be enforced abroad.
6
For a deeper analysis, see Andrea Carlevaris and José Ricardo Feris, “Running in the ICC
Emergency Arbitration Rules: The First Ten Cases”, in ICC – International Court of
Arbitration Bulletin, Vol. 25, number 1-2014, pp. 25-38.
5
In 2013, another major international arbitration centre, Singapore
updated its provision for emergency relief7 8.
Under art. 26.2 SIAC Rules 2013, a party may apply for emergency
measures, prior to the constitution of the arbitral tribunal.
As under HKIAC Rules, this application is possible only in the same
moment of the Notice of Arbitration or in a following moment, not
before the Notice of Arbitration (Schedule 1.1). The Emergency
Arbitrator is appointed by the President in one business day from the
application (schedule 1.2) and he (or she) has to “establish a
schedule for consideration of the application for emergency relief”
within 2 business days (schedule 1.5), but no term is provided for
making the decision.
The form of the decision may be an order or an award, as is deemed
more appropriate. The decision shall be in writing and reasoned
(schedule 1.6).
Also LCIA Rules 2014 have provided for the Emergency Arbitrator in
art. 9B.
As in the latter arbitral institution, the application is possible only from
the moment of the Request to Arbitration (art. 9.5) and the
Emergency Arbitrator shall be appointed by the LCIA Court within 3
days following the application (art. 9.6).
7
SIAC was one of the first institutions to introduce this procedure, in July 2010. SIAC has
made 37 emergency arbitrator appointments as reported in KC Lye and Samuel Leong,
“Emergency arbitrators in Singapore – the SIAC rules” in http://www.lexology.com/
library/detail.aspx?g=efac76de-b020-4168bf29-b70f7fff1943.
8
For a comparison between emergency arbitrator and expedited procedure under SIAC
Rules, see Jonathan Leach and Julian Berenholtz, “The expedited and emergency
arbitrator procedures under the SIAC Rules – Six months on, how have they fared?”,
inhttp://www.international-arbitration-attorney.com/wp-content/uploads/ the-
expedited- and-emergency-arbitrator-procedures-under-the-SIAC-rules/.
6
The decision shall be made within 14 days from the date of the
appointment (art. 9.8) and in the form of an order or of an award. The
decision shall be in writing and reasoned (art. 9.9) and if it is in the
form of an award art. 26.8 applies. This means that the award is “final”
and – as a result – can be enforced under New York Convention.
And now, the latest to arrive: CIETAC.
New CIETAC Rules (that shall be effective as of 1 January 2015)
have provided for an Emergency Arbitrator.
Art. 23.2 says that the decision shall be made in the form of an order
or of an award.
The proceedings are regulated in Appendix III.
Under art. 2.1 on receiving the application, the President of the
Arbitration Court shall appoint the Emergency Arbitrator in one day.
According to art. 5.2 the Emergency Arbitrator shall “establish a
procedural timetable for the emergency arbitration proceedings” as
soon as possible, best within two days from his (or her) acceptance
of the appointment.
The decision has to be made within 15 days from the acceptance of
the appointment (art. 6.2) and shall be reasoned, signed by the
Emergency Arbitrator and stamped with the seal of the CIETAC
Arbitration Court (art. 6.3).
There are no provisions similar to HKIAC Rules Schedule 4.1; but we
can argue that such a limitation exists in CIETAC Rules also,
because there are no provisions of termination in case of failing to
start the arbitration proceedings, while – under ICC and Swiss Rules
– this is a reason to terminate the emergency proceedings. On the
other hand, we can affirm that if there are no express limitations,
7
there are no limitations at all. It would be wiser if CIETAC clarified
this issue.
Please, note that – under each of the above mentioned Rules – the
Emergency Arbitrator cannot act as an arbitrator in the following
proceedings.
It is worth noting that emergency arbitrators “are not able to grant
interim orders over third parties to the (eventual) arbitral proceedings
[…] ex parte applications – where the element of surprise is vital to
their success – are not suitable for submission to emergency
arbitrators”9. This issues (together with the enforceability) have to be
taken into account; it is possible that “a concerned party would do
better to make an application to a competent Court under Article 17J
in the seat of arbitration or the location of the asset or individuals in
question”10. Another author says: “it is critical that parties are aware
of the risks and uncertainties involved before embarking on this route
in preference to seeking court assistance”11 12.
A distinguished author says that “the elephant in the room is of
course the question of enforceability” 13 , that “appears not to have
9
Herbert Smith Freehills, “First aid in arbitration: Emergency Arbitrators to the rescue”, in
http://kluwerarbitrationblog.com/blog/2011/11/15/first-aid-in-arbitration-emergency -
arbitrators-to-the-rescue/.
10
CIArb Guideline 2 to the UNCITRAL Model Law and Rules: Guidelines for Arbitrators on
how to approach an application for interim measures of protection, 1.8.
11
Jue Jun Lu, “The emergency arbitrator procedure: effective tool or enforcement
headache?”, in http://www.blplaw.com/expert-legal-insights/articles/the-emergency-
arbitrator-procedure-effective-tool-or-enforcement-headache/.
12
For an overview of pros and cons of emergency arbitration, see Jacob Grierson and
Stefano Mechelli, “The new Emergency Arbitrator Provisions in the 2012 ICC Arbitration
Rules”, in http://www.lexology.com/library/details.aspx?g=424069dc-d629-4cec-ba13-
5e36be6d08ce.
13
Louise Barrington, “Emergency arbitrators: can they be useful to the construction
industry?”, in Construction Law International, Volume 7, Issue 2, 2012, p. 43
8
been fully tested”14 but often the party is voluntarily compliant with
the emergency arbitrator’s decision15.
Of course, the ideal solution would be the creation of an international
convention on interim measures or modify the NYC in order to
include the recognition and the enforcement of interim measures. A
learned author says: “the next natural step in the evolution of the
NYC is to amend its language to specifically include interim
measures and to set safeguards for their enforcement”16.
Another author suggests: “a more immediate solution for jurisdictions
that have no legislation regarding emergency arbitrations, is to follow
the example of Singapore and Hong Kong, that have recently
amended their international arbitration legislation to provide
emergency awards and orders with the same legal status as an
award of an arbitral tribunal”17.
So, we can conclude that the figure of the Emergency Arbitrator is
spreading all over the world18. It is a correct and speedy19 answer to
a crucial issue.
14
Kate Wilford, “Emergency Arbitrators – developments form the LCIA and ICC”, in ARBlog
international arbitration news, trends and cases, in http://hlarbitrationlaw.com/2014/08/
emergency-arbitrators-developments-form-the-lcia-and-icc/.
15
Ben Giaretta and Michael Weatherley, “The emergence of emergency arbitration”, in
www.ashurst.com say: “There appears to be a high rate of voluntary compliance with
emergency awards because respondents wish to avoid the possibility of the main tribunal
drawing negative inferences about them”.
16
Christoph Liebscher, Comment to Art. V NYC in “New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards – Commentary”, Wolff (ed.), C.H.
Beck – Hart – Nomos, 2012, p. 366.
17
Nicolas Costabile, “Enforcing emergency arbitrator decisions”, in www.cdr-news.com
18
Also WIPO Arbitration Rules 2014 provide for Emergency Arbitrator (see art. 49).
19
In cases dealt with by SIAC, “the average time taken by an emergency arbitrator to pass
an award after having heard the parties ranges from 8-10 days” (Nicholas Peacock and
Kritika Venugopal, “SIAC emergency arbitrator awards – a speedier route to interim relief
before the Indian Courts?”, in http://hsnotes.com/arbitration/2014/04/01/siac-
emergency- arbitrator-awards –a-speedier-route-to-interim-relief-before-the-indian-
courts/
9
Table of comparison
Institution Application Appointment Time to Form of Costs
before speed render decision
starting decision
arbitration
proceedings
ICC Yes, but Normally 2 15 days Order 40.000,00 US$
Request for days
Arbitration
must follow
within 10
days
SAIC / Yes, but As soon as 15 days Interim 4.500,00 CHF
Swiss Notice of possible Award (Registration fee)
Arbitration + 20.000,00 CHF
must follow
advance of costs
within 10
days (usually
Arbitration fee is
between
2.000,00 and
20.000,00 CHF)
HKIAC No 2 days 15 days HKIAC Administrative
do not fee according to
provide schedule +
for a hourly rate fee
particular for arbitrator
form, but
probably
it is an
award
SIAC No 1 business No Order or 5.000,00
day provision Award S$ Administrative
fee + 20%
maximum fee of
a sole arbitrator
as Emergency
Arbitrator’s fee
(but not less than
20.000,00 S$)
LCIA No 3 days 14 days Order or 8.000,00
Award £ Application fee
+ 20.000,00
£ Emergency
Arbitrator’s fee
CIETAC No express 1 day 15 days Order or 30.000,00 RMB
provision. Award
Probably it
is not
possible.
10
11
