Emergency arbitrator: a helping hand in times of need

When commercial or economic entities become embroiled in disputes, many take measures to quickly divert or conceal the property in question, or destroy case-related evidence to minimise their losses in the dispute.

As constitution of an arbitral tribunal in international arbitration can take a long time, a party must bear the risks of property diversion or evidence destruction before the hearing.

On that note, to address arbitration needs “so urgent that waiting for the constitution of the arbitral tribunal before the granting of interim or preservation measures is not an option”, the emergency arbitrator system was created, offering parties access to pre-tribunal interim relief.

The International Chamber of Commerce (ICC) Court of Arbitration introduced the emergency arbitrator mechanism in 2012, but it was not the ICC’s first attempt to attempt pre-arbitral interim measures. As early as 1990, the ICC created the pre-arbitral referee procedure in an attempt to put in place a system to resolve the issue of interim measures before arbitral tribunals are constituted.

The pre-arbitral referee procedure was an embryonic form of the ICC’s emergency arbitrator provisions, although the two fundamentally differ in how they apply, with the former being “opt-in” and the latter being “opt-out”.

This difference is the fundamental reason why the former has not been widely employed while the latter has been wildly successful.

It should be noted that the ICC’s Rules for a Pre-Arbitral Referee Procedure are still in effect. The latest 2021 edition of the ICC Arbitration Rules (ICC rules) details current provisions for the emergency arbitrator procedure in article 29 and appendix V, Emergency Arbitrator Rules.

Why emergency arbitrator?

Although there is not yet any uniform practice around the enforceability of emergency arbitrator orders in courts of different countries, the mechanism has been demonstrating increasingly greater vitality in the past 30 years, due to its high attentiveness of party autonomy, confidentiality, efficiency and impartiality.

Practice has shown that the enforceability of emergency arbitrators’ orders is not manifest solely in their recognition and enforcement by courts.

On one hand, arbitration rules specify that orders are binding on the parties; on the other hand, the non-complying party also bears potential risk of the arbitral tribunal drawing an adverse inference from its breach.

As of April 2018, in 23 orders rendered by the ICC approving emergency measure applications, a party failed to voluntarily comply with the order in only three instances.

The emergency arbitrator mechanism has also played a positive catalytic role in promoting settlements between parties, evidenced by review of substantive content of applicants’ arbitration claims by emergency arbitrators on whether reasonable prospect of prevailing permits parties to build up expectations of the arbitral award and adjust their positions at an early stage.

As of April 2018, of the 80 applications for emergency measures accepted by the ICC, settlement was reached before rendering of the final award in 25 cases, representing 31% of cases.

How to apply

A party is required to promptly inform the secretariat before submitting an application so time can be allocated in advance to expedite processing the application. Applications should be sent to emergencyarbitrator@iccwbo.org by e-mail, an address exclusively used for submitting applications for emergency measures. For general questions regarding application of the ICC rules and emergency arbitrator provisions, communications need to be addressed to the specific case management team, or arb@iccwbo.org.

Although there is no fixed format or template for an application, it should be prepared in the language of arbitration specified in the arbitration agreement or, in the absence of this, the language of the arbitration agreement itself. An application is required to provide the following information:

1. Basic particulars of the parties, including their full names, descriptions, addresses and contact information;
2. Reason for submitting the application and an account of the underlying dispute in question;
3. Emergency measures being sought;
4. Reason why it is necessary to apply for emergency measures without waiting for constitution of the tribunal;
5. Valid arbitration agreement;
6. Proof of payment.

Duration and effect

If the court of arbitration determines that an application for emergency arbitrator should be accepted, the president will usually appoint an emergency arbitrator within two calendar days from the date that the secretariat receives the application. The emergency arbitrator will issue a procedural schedule within two days from the date of receipt of the case materials and render an order within 15 days.

The applicant must submit an application for arbitration before submitting its application for an emergency arbitrator – or within 10 days from the date it submits the application – failing which the emergency arbitration procedure halts.

In practice of the court of arbitration, the emergency arbitrator renders an order on average within 16 days.

Unless the parties have expressly excluded application of the emergency arbitrator provisions, they are deemed to have undertaken to comply with any order rendered by the emergency arbitrator. The emergency arbitrator may additionally require a party to provide appropriate security.

However, notwithstanding application of the emergency arbitrator procedure, a party retains the right to apply for emergency measures to a competent judicial authority at any time. An emergency arbitrator’s order is not binding on the subsequently constituted arbitral tribunal with respect to any question, matter or dispute identified in the order. The arbitral tribunal may revise, terminate or set aside an order rendered by the emergency arbitrator.