The International Chamber of Commerce (ICC) Commission recently released a report on Emergency Arbitrator Proceedings.
The report combines insights from the ICC as well as the Singapore International Arbitration Centre (SIAC), the Hong Kong International Arbitration Centre (HKIAC), the London Court of International Arbitration (LCIA), the Stockholm Chamber of Commerce (SCC), and the Swiss Chambers’ Arbitration Institution (SCAI) and their respective experiences with emergency arbitrator procedures. Emergency arbitrator procedures were first introduced by the SCC and SIAC. Since the addition of emergency arbitrator procedures to the ICC Arbitration Rules in 2012, the ICC Rules have been utilized the most for requests for pre-arbitral relief of any of the institutional rules.
The report analyzes eighty ICC Applications for Emergency Measures. It found that relief was granted in only a minority of cases, but “EAs [emergency arbitrators] have in multiple cases been persuaded to grant interim relief and the EA Provisions are thus an important addition to the ICC Rules, filling a previously existing void.” Under the ICC Rules, the single sitting emergency arbitrator may set their own procedure and will decide the application on an expedited basis.
While emergency arbitral proceedings are perceived as more efficient than obtaining interim orders from a state court, the issue of enforceability of emergency arbitration measures remains uncertain. This is especially true under the ICC Arbitration Rules where the emergency arbitrator issues an “order” rather than an “award.” Importantly, the New York Convention applies only to the recognition and enforcement of arbitral awards. The report weighs in on the issue of enforceability of emergency interim orders in national jurisdictions through the amassing of 45 national reports and states that “in the vast majority of cases, parties comply voluntarily with EA decisions . . . in order to avoid the negative consequences non-compliance may have in the arbitration on the merits.”
It is also important to note that emergency arbitrator measures are not exclusive of national court remedies, and interim or conservatory relief awarded by national courts are not preclusive of emergency arbitrator measures. However, the choice of preference may have implications for the merits of the arbitration.