Articles & Write Ups

  • EMERGENCY ARBITRATION

    by  Kamakshi S. Mehlwal, Arbitrator and AOR Supreme Court of India

    Heralding the evolution of this most contemporary modus operandi, parties direly in need of compelling interim relief before the formation of an Arbitral Tribunal can avail of emergency arbitration procedures. This inevitable requirement has persuaded Arbitral institutions to formulate procedures for remedying the emergent predicament by means of expedited or Emergency Arbitration in lieu of parties rushing to Courts or awaiting anxiously for the creation of the Arbitral Tribunal. Parties can avail of Emergency relief either through the appointment of an Emergency Arbitrator (EA) or through the expeditious and pragmatic constitution of the Tribunal.

    The parties are more likely to opt for EA procedures where:
    ·         The national Courts are unreliable or inefficient
    ·         Where the applicable Rules permit inter parte relief; and
    ·         The reprieve is extremely imperative and cannot await the fast track constitution of the Tribunal or the potentially slow pace of national Courts especially where the relief may be sought even before the notice of arbitration is filed.

    Parties are less probable to opt for EA procedures where:
    ·         The costs of the EA are prohibitive;
    ·    Where  ex-parte interim relief is needed (in which case national Courts are likely to be the preferred option); and
    ·       Where  relief against third parties to the Arbitration Agreement is needed (in which case national Courts are again likely to be preferred).

    In India, the Rules governing the Indian Council of Arbitration (Rules of Arbitration & Conciliation) as amended on and with effect from May 8, 2012 do not have any provision for the appointment of an Emergency Arbitrator. But Rule 44 provides that parties may opt for Fast Track Arbitration and request the Arbitral Tribunal, before the commencement of the Arbitration Proceedings, to decide the reference in a fixed time frame of 3 to 6 months or any other time agreed to between the parties according to the Fast Track Arbitration procedure.


    But Rule 33 of the ICA Rules of International Arbitration effective…provide for appointment of an Emergency Arbitrator if a party is in requirement of urgent interim or conservatory measures, that cannot await formation of the Tribunal. It may make an application for emergency interim relief to the Registrar of the ICA with a simultaneous copy thereof to the other parties to the arbitration agreement.

    The party making such an application shall:

    a) describe the circumstances and the nature of the urgency and the measures sought
    b) file proof of service of such application upon the opposite parties.
    c) deposit the necessary fees prescribed in the relevant schedule of fee within 7 days from the date of demand made by the Registrar.
    The Registrar, in consultation with the Chairman, and in his absence, the Committee, shall appoint the Emergency Arbitrator as soon as possible but not later than seven days from the date of receipt of the fee. The Emergency Arbitrator's Fee shall be between US Dollars 1,650 and 16,500 as may be fixed by the Registrar in consultation with the Chairman and in his absence the Committee. Such fee shall be deposited by the party applying for the appointment of the emergency arbitrator within 7 days of the date of demand.
    The Emergency Arbitrator so appointed shall schedule a hearing including filing of pleadings as soon as possible but not later than seven days of his appointment. The Emergency Arbitrator shall provide reasonable opportunity of being heard to all the parties and upon being satisfied shall have the power to pass an interim order as provided under Rule 24.
    The Emergency Arbitrator's Fee shall be between US Dollars 1,650 and 16,500 as may be fixed by the Registrar in consultation with the Chairman and in his absence the Committee. Such fee shall be deposited by the party applying for the appointment of the emergency arbitrator within 7 days of the date of demand.
    The Emergency Arbitrator shall become functus officio after the Order is made and shall not be a part of the Tribunal.
    Similarly the Delhi International Arbitration Centre has been a trendsetter in the latest international arbitration movement and has at the outset incorporated distinct provisions for appointment of Emergency Arbitrators.

    The Delhi International Arbitration Centre, (DAC) (Arbitration Proceedings) Rules which came into effect from 1st November 2012 has Rule 18A incorporated in  PART III–A  of the Rules which deals exclusively with Emergency Arbitration :

    (1) If a party is in requirement of urgent interim or conservatory measures, that cannot await formation of the Arbitration Tribunal, it may make an application to the Secretariat addressed to the Coordinator, with a simultaneous copy thereof to the other parties to the arbitration agreement for such measures.

    (2) The party making such an application shall

    a) describe the circumstances and the nature of the urgency and the measures sought
    b) pay the relevant application fee for appointment of the Emergency Arbitrator
    c) file proof of service of such application upon the opposite parties.

    (3) The party invoking the provision of Emergency Arbitrator shall deposit cash and fees prescribed in the schedule.

    (4) The Secretariat with the consent of the Chairperson shall appoint the Emergency Arbitrator within two days of making of such request (excluding non-business days).

    (5) The Emergency Arbitrator so appointed shall schedule a hearing including filing of pleadings and documents by the parties within two business days of his appointment.   The Emergency Arbitrator shall provide reasonable opportunity of being heard to all the parties before granting any urgent interim or conservatory measures and proceed to make an Order by giving reasons. The parties shall comply with any order made by the Emergency Arbitrator.

    (6) The Emergency Arbitrator shall ensure that the entire process from the appointment of the Emergency Arbitrator to making the Order shall be completed within seven (7) days (excluding non-business days).

    (7) The Emergency Arbitrator shall become functus officio after the Order is made and shall not be a part of the Arbitral Tribunal, which may be formed subsequently and in accordance with Rule 14, unless otherwise agreed to by the parties.

    (8) The order for urgent interim or conservatory measures passed by the Emergency Arbitrator shall not bind the Arbitral Tribunal on the merits of any issue or dispute that the said Tribunal may be required to determine.
    (9) The order passed by the Emergency Arbitrator shall remain operative for a period of two months from the date of passing of the order unless modified, substituted or vacated by the Arbitral Tribunal. The Arbitral Tribunal will also have the power to extend the order beyond the period of two months.
    Institutions that provide for both expedited formation of the Tribunal as well as for appointment of the Emergency Arbitrator are:
    1.  The Singapore International Arbitration Centre
    2.  The Stockholm Chamber of Commerce
    3.  The Swiss Chambers Arbitration Institution
    4.  The Mexico City National Chamber of Commerce
    5.  The Netherlands Arbitration Institute 

    Institutions that provide for expedited proceedings to the exclusion of the Emergency Arbitrator are:
    1.  The Dubai International Arbitration Centre (DIAC)
    2.  The Hong Kong International Arbitration Centre
    3.  The London Court of International Arbitration (LCIA)
    4.  Indian Council of Arbitration

    The most recently updated draft Rules of the London Court of International Arbitration (LCIA) has dropped the proposed new Emergency Arbitrator procedure. In cases of exceptional urgency, a party may apply for the expedited formation of the Tribunal under the 1998 LCIA Rules.  Article 9 provides for the expedited formation of the Tribunal.

    On the contrary, DIFC LCIA , the International Centre for Dispute Resolution of the American Arbitration Association (ICDR/AAA) and the International Chamber of Commerce (ICC) have opted to provide for EA provisions.
    Article 29 of the DIFC-LCIA Rules enumerates E.A. provisions as:
    Article 29: Emergency Arbitrator
    1) 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.

    2) The emergency arbitrator’s decision shall take the form of an order. The parties undertake to comply with any order made by the emergency arbitrator.
    3) The emergency arbitrator's order shall not bind the arbitral Tribunal with respect to any question, issue or dispute determined in the order. The arbitral Tribunal may modify, terminate or annul the order or any modification thereto made by the emergency arbitrator.

    4) The arbitral Tribunal shall decide upon any party’s requests or claims related to the emergency arbitrator proceedings, including the reallocation of the costs of such proceedings and any claims arising out of or in connection with the compliance or non-compliance with the order.

    5) Articles 29(1)–29(4) and the Emergency Arbitrator Rules set forth in Appendix V (collectively the “Emergency Arbitrator Provisions”) shall apply only to parties that are either signatories of the arbitration agreement under the Rules that is relied upon for the application or successors to such signatories.

    6) The Emergency Arbitrator Provisions shall not apply if:
    a) the arbitration agreement under the Rules was concluded before the date on which the Rules came into force;
    b) the parties have agreed to opt out of the Emergency Arbitrator Provisions; or
    c) the parties have agreed to another pre-arbitral procedure that provides for the granting of conservatory, interim or similar measures.

    7) The Emergency Arbitrator Provisions are not intended to prevent any party from seeking urgent interim or conservatory measures from a competent judicial authority at any time prior to making an application for such measures, and in appropriate circumstances even thereafter, pursuant to the Rules. Any application for such measures from a competent judicial authority shall not be deemed to be an infringement or a waiver of the arbitration agreement. Any such application and any measures taken by the judicial authority must be notified without delay to the Secretariat.
    The ICC  (International Chamber of Commerce)  has been the most recent institution to incorporate EA procedures into its Rules. Since 1990  its  “Pre-Arbitral Referee Procedure” provided that applications for emergency relief prior to the constitution of the Tribunal were to be made directly to Courts.
    With effect from January 1, 2012 the ICC “Revised Rules of Arbitration” offer a procedure for parties to seek urgent interim relief that cannot await the constitution of an Arbitral Tribunal.

    Any emergency measure granted takes the form of an Order, which may be later ratified by the Arbitral Tribunal, once constituted.

    Scope of Rules (Article 29 and Appendix V )

    Pursuant to Article 29 of the Rules and Appendix V (“Emergency Arbitrator Provisions”), a party that needs urgent interim measures (“Emergency Measures”) that cannot await the constitution of an arbitral Tribunal may make an application to the Secretariat of the ICC International Court of Arbitration (“Secretariat”).

    The Emergency Arbitrator Provisions apply only to parties that are signatories to the arbitration agreement that is relied upon for the application or successors to such signatories.

    Furthermore, the Emergency Arbitrator Provisions shall not apply if:
    ·         the arbitration agreement under the Rules was concluded before 1 January 2012;

    ·         the parties have opted out of the Emergency Arbitrator Provisions (see the Standard ICC Arbitration Clauses); or

    ·         the parties have agreed to another pre-arbitral procedure that provides for the granting of conservatory, interim or similar measures.
    Finally, parties may agree that the Emergency Arbitrator Provisions apply to Arbitration Agreements concluded before 1 January 2012.
    o              a description of the circumstances giving rise to the Application and of the underlying dispute referred or to be referred to arbitration;
    o    a statement of the Emergency Measures sought;
    o    the reasons why the applicant needs urgent interim or conservatory measures that cannot await the constitution of an arbitral Tribunal;
    o    any relevant agreements and, in particular, the arbitration agreement;
    o    any agreement as to the place of the arbitration, the applicable rules of law or the language of the arbitration;
    o    proof of payment of the amount referred to in Article 7(1) of Appendix V; and
    o    any Request for Arbitration and any other submissions in connection with the underlying dispute, which have been filed with the Secretariat by any of the parties to the emergency arbitrator proceedings prior to the making of the Application.

    The ICC’s 2012 Rules apply to all new arbitrations commenced after January 1, 2012; but EA procedures only apply to contracts entered into after January 1. It is likely that there will be a time lag before any example of its use comes to light.

    Emergency Arbitration Rules of the International Chamber of Commerce  (ICC)

    The new ICC Emergency Arbitration Rules can be summarised with five key principles, all of which reverberate to one degree or another with the principles associated with other institutions applying Emergency Arbitration provisions:

    1. Opt Out —
    The first key principle of the new EA Rules is that they apply by default to parties having opted to arbitrate their dispute under the ICC Rules.
    There are, however, specific requirements that must be met in order for the “Emergency Arbitrator Provisions” as defined in Art. 29(5) of the Rules (EAP) to apply automatically, namely that:
    (a) the application is submitted prior to the transmission of the file to the Arbitral Tribunal;
    (b) the Arbitration Agreement was concluded after January 1, 2012; and
    (c) there is no agreement of the parties to opt-out of the EAP.

    The “opt-out” preference was incorporated in response to concerns over the low uptake of previous “opt-in” procedures and provide wider choices to parties who may not have specifically considered the requirement for interim relief at the time of contracting.

    2. No Third Parties —
    The second key principle is that the application of the EAP is limited to signatories to the Arbitration Agreement or their successors. This provides the responding party faced with an application for Emergency Measures with a certain degree of protection and means that the application of the EAP to treaty-based arbitrations is excluded.

    3. Genuine Urgency —
    The third key principle is that in order to avoid abuse of the EAP its scope has been narrowed to situations where a party seeks relief that truly cannot wait for the constitution of an arbitral Tribunal. This principle is captured explicitly in Article 29(1).

    4. Respondent Protected —
    The inherent principle is safeguarding the interest of the responding party. This principle is reflected such that there is no default answer to the application for Emergency Measures within a certain short deadline ensuring that the respondent has an opportunity to respond to the application, that the applicant must pay a fee for the EA procedure to the ICC upfront, and that the applicant must, as a rule, file a request for arbitration within 10 days from the application, failing which the President will terminate the EA proceedings.

    5. No Bar on Courts —
    A key principle is embodied in Article 29(7) which expressly provides that the EAP are not intended to prevent any party from seeking urgent interim or conservatory measures from a Court of competent jurisdiction. This rule applies without restriction before an application has been made for Emergency Measures and may even apply afterwards “in appropriate circumstances”.

    ENFORCEMENT OF  EA  ORDERS AND AWARDS
    Plausibly one of the foremost questions emanating from the systematic development of EA procedures is whether the benefits afforded to a party through entrée to EA are diluted by improbability over whether or not an order or award issued by an EA is enforceable.
    Opinions of different institutions conflicting on this question and at the same time in many cases there has not been enough time and experience of the procedures to allow unyielding conclusions. There are some examples and trends available which should assist institutions and jurisdictions coming to terms with the legal and jurisdictional functions that Emergency Arbitrators may play.

    Under the ICC’s Rules the EA’s decision is rendered in the form of an Order which is binding on the parties and which the parties undertake to comply with. Whilst the Rules and Appendix V are silent on the question of enforcement of the EA’s Order, it is unclear whether the Order has the same legal effect as an Order for interim measures by an Arbitral Tribunal under Article 28(1) of the Rules.
    One view is that it may be enforceable in State Courts under provisions such as Articles 17 H and 17 I of the 2006 revision of the UNCITRAL Model Law providing for the recognition and enforcement of interim measures granted by Arbitral Tribunals.
    US Courts have been forced to come to grips with the subject of enforceability and their approach has been to accept EA decisions as enforceable in the same manner as an Arbitral Award. Whether—applying a “substance-over-form” approach—the Order could qualify as an Award so as to be enforceable under the New York Convention or legislation based thereon, is uncertain.
    The inherent intention behind the EA procedure in the ICC’s 2012 Rules is that an applicant should be able to secure effective interim relief in less than three weeks from the commencement of the procedure. In 2012 there were only 2 applications filed before ICC seeking EA proceedings. Although there are limits to what interim procedures can reasonably achieve, it appears that the ICC hopes that this new procedure will contribute to the escalating conveniences available to parties resorting to arbitration for determination of their disputes.
    A summarized study of the experience with pre-arbitral interim  relief procedure of some Institutions that provide for both expedited formation of the Tribunal as well as for appointment of the Emergency Arbitrator are:

    Singapore International Arbitration Centre (SIAC)
    SIAC’s approach to emergency procedures relies primarily on EAs who can be called upon to answer emergency issues before the arbitral Tribunal has been constituted. It should be noted from the outset that these procedures apply to the relevant arbitration agreements by default—meaning that there is no requirement for the parties to “opt-in” to their availability.
    The default operation of EA rules or the requirement to explicitly opt out of their provisions is an important developing feature of EA procedures across the range of institutions worldwide. The practical effect of the default operation of these provisions is that EA procedures become more widely available to disputing parties and there will likely be a continuing increase in applications for EA interim relief.
    Rule 26.2 and Schedule 1 to the SIAC Arbitration Rules which came into effect on July 1, 2010, provide that a party in need of relief may make an application for emergency interim relief prior to the constitution of the arbitral Tribunal provided it is done concurrently with or following the filing of a Notice of Arbitration. 
    The Chairman of SIAC then must appoint an EA within one business day of receipt of the application. In turn the EA must within two business days of appointment establish a Schedule for considering the application.
    Whilst SIAC procedures provide the EA with broad discretionary powers to award any interim relief deemed necessary, the EA has no power to act after the Tribunal is constituted, and any relief granted by the EA ceases to be binding after 90 days if the Tribunal is not constituted.
    Additional jurisdictional safeguard is afforded to the subsequently-constituted Tribunal. It is not bound by any determination made by the EA. The Tribunal can reconsider, modify or vacate any interim award or relief issued by the EA.
    Furthermore, the Tribunal, once constituted has the power to award injunctions and other interim relief if appropriate on the application of a party to the dispute. However, a party may, in exceptional circumstances, only apply to the Courts for interim relief after the constitution of the Tribunal.
    Only about half a dozen cases of invoking the EA provisions before the SIAC have been recorded upto now. Names of parties have been withheld to safeguard the privacy of the proceedings. These cases are a glaring example of how EA provisions are speedy and highly effective if invoked by aggrieved parties.

    Case Study 1
    One of the first cases where an EA was appointed under the SIAC Rules was in a dispute between a Chinese and Indonesian company:

    · The dispute between a Chinese company and an Indonesian company was in relation to the quality of a shipment of coal.
    · The Indonesian shipper wanted to sell the cargo of coal pending the resolution of the dispute as the cargo was deteriorating.
    · The applicant (the Indonesian company) contacted SIAC on Monday morning warning of their intention to make an EA application.
    · The applicant company filed their papers at 14.00 and by 17.00, an experienced Singaporean shipping lawyer was appointed as the EA.
    · The EA gave his preliminary directions that evening and a hearing was scheduled for the next day.
    · On the next day, he made an order permitting the sale and directing the respondents to co-operate to permit the cargo to leave the port. 

    Case Study 2
    · An Indian initiated arbitration alleging that the British Virgin Islands (BVI) company it had entered into a shareholders agreement with to set up a joint venture had breached the shareholder’s agreement.
    · The Indian company filed an application for emergency interim relief seeking an order: (i) restraining the BVI company from breaching the confidentiality provisions; and (ii) abiding by the contractual dispute resolution mechanism of arbitration at SIAC.
    · Within 20 hours of the receipt of the application, SIAC appointed the EA.
    · A preliminary hearing was scheduled within one day of the appointment of the EA.
    · A preliminary order was issued on the same day to preserve the status quo.
    · An interim award was issued within two days and a supplementary interim award was issued 30 days thereafter.
    · The parties, thereafter, settled the matter.
    Case Study 3
    · The Indian claimant company initiated arbitration on the basis that even while it had fully performed its obligation under the contract, the Indian respondent had failed to make payments in excess of US $100 million.
    · The claimant also filed an application for emergency interim relief.
    · It was contended that the obligations under the contract stood fulfilled and consequently there was no liability surviving under the bank guarantees.
    · The claimant alleged that it had a reasonable apprehension that the respondent would, purely as a means of retaliation, make a bad faith and/or fraudulent encashment of the bank guarantees without any cause or basis.
    · The claimant sought emergency relief in the form of an injunction restraining the respondent from invoking the bank guarantees.
    · SIAC received the application at 21.30 Singapore time.
    · The Chairman of SIAC determined that the application should be accepted and on the basis of the nature of dispute, nationality of parties and relief sought, appointed the EA the next day.
    ·The EA appointed was well recognised as a leading international arbitrator, having sat as arbitrator in more than 170 cases and written numerous awards.
    · Within one day of his appointment, the EA established a schedule for consideration of the application for emergency relief.
    ·  As per the schedule, the parties made written submissions on the application and a telephonic hearing was conducted within one week of the appointment of the EA.
    · The EA passed an ad-interim order one day thereafter.
    · The parties, by consent, amended the terms of the order and the main arbitral Tribunal was constituted and the parties settled the case.

    Case Study 4

    · The claimants were companies incorporated in the Netherlands, Singapore and the United States. The respondent was a company incorporated in Hong Kong.
    · Disputes arose between the parties in relation to a supply and distribution agreement.
    · The claimants approached SIAC with an application seeking the appointment of an EA in relation to notices of termination of the agreement issued by the respondent.
    · The claimants sought various reliefs to prevent termination of the agreement, amongst others.
    · The EA was appointed within one business day and the procedural order issued the next day.
    · Hearing was conducted three days thereafter. And a consent order was passed in the EA proceedings five days thereafter pursuant to which the respondent agreed not to act on its termination of the agreement pending further order by the main Tribunal once constituted.
    Enforcement of Orders and Awards made by EAs in Singapore

    On April 9, 2012  the Singapore Parliament introduced amendments to the International Arbitration Act (IAA) to abrogate uncertainties over whether Orders and Awards made by EAs are enforceable or not. Now Awards and Orders given by EAs are enforceable in Singapore. The amendments have accorded EAs the same legal status as that of a regularly-constituted Arbitral Tribunal.
    This legislative amendment distinguishes Singapore from other institutions as it provides clarity that is otherwise unavailable in most other jurisdictions, save perhaps for the United States where Courts’ decisions suggest that Awards and Orders of pre-Tribunal EAs under Article 37 of ICDR Rules are enforceable.
    However uncertainty remains as to the enforceability of SIAC’s EA Orders and Awards outside Singapore. Some other countries have also taken steps to deal with the improbability regarding the legal status of orders passed by an EA. Austria and Switzerland have also enacted laws to establish the legal position of EAs.

    Stockholm Chamber of Commerce (SCC)

    Amendments that came into force on January 1, 2010 established a forceful EA machinery in SCC which sees the appointment of an EA in 24 hours and provides broad discretionary powers to the EA to conduct the proceedings as he or she sees fit. However, prior to the appointment of the EA it is the SCC board that is responsible for determining jurisdiction over the dispute in accordance with Article 4(2) of the SCC Rules.
    An emergency decision on interim measures shall be made not later than five days from the referral of the case to the EA and may be subject to provision of appropriate security. The five-day period may, however, be extended by the Board upon a reasoned request from the EA or if it is otherwise deemed necessary, e.g. if the defendant has not been served or the notice of invocation of EA has taken a long time.
    As with the SIAC and ICC Rules, the SCC Rules on an EA are designed as an opt-out solution and thus apply to all SCC arbitrations unless the parties expressly agree otherwise. Similarly, the Rules are not intended to be available on an ex parte basis and therefore require service of notice to the opposing party. The SCC Rules enable parties arbitrating to use the EA procedures even if their Arbitration Agreement was concluded prior to the commencement of the new procedures on January 1, 2010. The retrospective application of the new Rules has caused momentous debate and commentary amongst the arbitration community.
    Over the four year period from 1 January 2010 to 31 December 2013, there were only nine applications, and emergency relief was only granted in two of those cases under the SCC Rules for EA procedures.

    Case studies:

    Case Study 1
    In the first case where an EA was appointed, the following were the brief facts of the case:

    ·             The Dutch claimant requested interim relief to secure a claim on an outstanding amount of US $145 million that the Cypriot respondent failed to pay with respect to a trans-shipment.
    ·               An EA was appointed within 13 hours of the SCC receiving the application and a decision was laid down on day eight (after an extension to allow the respondent additional time to confirm its representation).
    ·             Two of four other requests for interim measures were denied because they were directed towards third party entities.
    ·           The remaining requests were aimed at prohibiting the respondent from disposing of real estate and shares in a certain company. The EA held that the claimant must show that the harm which is to be prevented by that measure is considered to be irreparable and of an urgent or imminent nature.
    ·              The claimant did not show that the sale of such assets would be to the detriment and therefore the application for interim measures was denied.

    Case Study 2
    The second case study involved an Israeli claimant seeking an injunction restraining the Georgian respondent from receiving payments pursuant to bank guarantees:
    ·               The claimant had provided the bank guarantees for its performance in a building project.
    ·               The EA found the claimant’s request to be substantiated but denied the relief requested based on the assessment that no irreparable harm would be caused, nor was this matter of an urgent nature. The decision was issued on the fifth day after receiving the application.

    Case Study 3
    The third request for interim measures was granted by the EA:
    ·               EA was invoked for an alleged breach of a shareholders’ agreement between a Swiss claimant and a Swedish respondent.
    ·               The claimant wanted an injunction restraining the respondent from selling, assigning or transferring any of its shares in a certain company as this would prejudice the claimant’s interests arising out of the shareholders’ agreement.
    ·               The EA found that the claimant had established the grounds and that the requested interim measure was necessary to safeguard the substantive rights of the claimant and therefore awarded the injunction.


    WIPO MEDIATION, (EXPEDITED) ARBITRATION & EXPERT DETERMINATION RULES, 2014:
    In conformity with emerging trends and experience in national and international institutional Arbitration Rules, the 2014 WIPO Arbitration Rules make available the ability to parties to call upon an emergency relief procedure prior to the establishment of the Tribunal. Unless parties agree otherwise,  Article 43 of the 2014 Expedited Arbitration Rules will apply only to Arbitration Agreements entered into on or after June 1, 2014. Parties retain the option to file a request for emergency relief with a judicial authority.
    While the 2014 Rules do not mandate a strict timeline for the Emergency Arbitrator to order an interim measure, the Emergency Arbitrator is requested to conduct the proceedings in an appropriate manner, taking into consideration the urgency of the proceedings.
    Article 43(g) of the 2014 Expedited Arbitration Rules lays down that each party shall be given a fair opportunity to present its case, but in consonance with modern technology allows proceedings to be conducted by tele-conferencing also, or on the basis of written submissions as alternatives to an in-person hearing.

    Article 43
    (a) Unless otherwise agreed by the parties, the provisions of this Article shall apply to arbitrations conducted under Arbitration Agreements entered on or after June 1, 2014.
    (b) A party seeking urgent interim relief prior to the establishment of the Tribunal may submit a request for such emergency relief to the Center. The request for emergency relief shall include the particulars set out in Article 9 (ii) to (iv), as well as a statement of the interim measures sought and the reasons why such relief is needed on an emergency basis. The Center shall inform the other party of the receipt of the request for emergency relief.
    (c) The date of commencement of the emergency relief proceedings shall be the date on which the request referred to in paragraph (b) is received by the Center.
    (d) The request for emergency relief shall be subject to proof of payment of the administration fee and of the initial deposit of the emergency arbitrator’s fees in accordance with the Schedule of Fees applicable on the date of commencement of the emergency relief proceedings.
    (e) Upon receipt of the request for emergency relief, the Center shall promptly, normally within two days, appoint a sole emergency arbitrator. Articles 17 to 24 shall apply mutatis mutandis whereby the periods of time referred to in Articles 20 and 21 shall be three days.
    (f) The emergency arbitrator shall have the powers vested in the Tribunal under Article 30 (a) and (b), including the authority to determine its own jurisdiction. Article 30 (e) shall apply mutatis mutandis.
    (g) The emergency arbitrator may conduct the proceedings in such manner as it considers appropriate, taking due account of the urgency of the request. The emergency arbitrator shall ensure that each party is given a reasonable opportunity to present its case. The emergency arbitrator may provide for proceedings by telephone conference or on written submissions as alternatives to a hearing.
    (h) If the parties have agreed upon the place of arbitration, that place shall be the place of the emergency relief proceedings. In the absence of such agreement, the place of the emergency relief proceedings shall be decided by the Center, taking into consideration any observations made by the parties and the circumstances of the emergency relief proceeding.
    (i) The emergency arbitrator may order any interim measure it deems necessary. The emergency arbitrator may make the granting of such orders subject to appropriate security being furnished by the requesting party. Article 42 (c) and (d) shall apply mutatis mutandis. Upon request, the emergency arbitrator may modify or terminate the order.
    (j) The emergency arbitrator shall terminate emergency relief proceedings if arbitration is not commenced within 30 days from the date of commencement of the emergency relief proceedings.
    (k) The costs of the emergency relief proceedings shall be initially fixed and apportioned by the emergency arbitrator in consultation with the Center, in accordance with the Schedule of Fees applicable on the date of commencement of the emergency relief proceedings, subject to the Tribunal’s power to make a final determination of the apportionment of such costs under Article 66(c).
    The Schedule of Fees for Emergency Relief requires an initial deposit of 10,000 USD. The Emergency Arbitrator’s fees are based on an hourly rate of 300 to 600 UDS per hour (indicative), capped at a maximum amount of 20,000 USD.  In the WIPO Center’s caseload, over 70% of cases (and over 90% of patent-related cases) have been international in scope.
    (l) Unless otherwise agreed by the parties, the emergency arbitrator may not act as an arbitrator in any arbitration relating to the dispute.
    (m) The emergency arbitrator shall have no further powers to act once the Tribunal is established. Upon request by a party, the Tribunal may modify or terminate any measure ordered by the emergency arbitrator.

    International Centre for Dispute Resolution (ICDR/AAA)
    The International Centre for Dispute Resolution (ICDR), established in 1996 by the American Arbitration Association administers International Arbitration proceedings initiated under the institution's Rules. ICDR  has offices in New York City, Dublin, Mexico City, and Singapore. ICDR has been a pioneer and adopted EA Rules as early as 2006.
    The ICDR incorporated a provision, dealing with emergency measures of protection, into its International Arbitration Rules as early as May 1, 2006. Article 37 entitles parties to arbitrations under the ICDR Rules to appoint an EA, who will hear requests for emergency relief that may be indispensable prior to the formation of the entire arbitration panel. The ICDR provisions incorporate the following key AA doctrines:
    ·         The Rules apply to all arbitrations conducted by the ICDR or AAA under clauses or agreements signed after May 1, 2006, unless the parties specifically opt-out.

    ·         The Rules require that the party seeking emergency relief provides comprehensive written notice to all other parties. The application must set out the nature of, and reasons for, the requested relief. There is no set format for the applications. Submissions have been extensive ranging from a 2-page letter to a 60-page formal application with 500 pages of supporting documentation.

    ·         The ICDR administrator shall appoint an EA within one business day. The EA must disclose, before accepting the appointment, any “circumstance likely to give rise to justifiable doubts as to the arbitrator’s impartiality or independence.” Any opposition to the appointment of the EA must be made within one business day.
    ·         There is no requirement for a formal hearing and the EA has the power to “order or award any interim or conservancy measure including injunctive relief and measures for the protection or conservation of property.” The determination may be in the form of an interim award or an order, as the EA deems appropriate. The EA may modify or vacate an order or award he or she makes for good cause.

    ICDR Rules apply to arbitrations that are considered “international” whenever the parties have agreed that the American Arbitration Association  should administer the arbitration but where no specific set of AAA Rules have been identified. What is considered “international” is determined by applying Article 1(3) of the UNCITRAL Model Law on International Arbitration and therefore encompasses an expansive range of disputes where the parties are from different countries, or where the dispute involves diverse legal and factual international issues.
    ·         The Rules bestow on the EA diverse powers, including “the authority to rule on her/his own jurisdiction”, resolve disputes over the applicability of the new Rules, and serve on the full Arbitration Tribunal with the consent of the parties.
    ·         The full Tribunal, once constituted, may also modify or vacate an interim award or order for any reason it considers appropriate.
    ·         The EA provision does not preclude the right to seek interim relief in Court nor under the Agreement to arbitrate. Neither shall “be deemed incompatible with Article 37.”

    Enforcement in the United States
    Having had several years of operation the ICDREA provisions have also been subject to US judicial determination on issues such as enforceability of “awards” as opposed to “orders” and whether the supposed provisional nature of decisions from EAs are in consonance with the finality requirement of the New York Convention.
    Sometimes parties have argued that only Awards should be enforceable in the United States because Orders are inadequately “final”. However, US Courts have rejected such a formalistic distinction between “orders” and “awards”.  In the matter of Publicis Communication v True North Communications, the 7th Circuit Court painstakingly considered a request to enforce an interim measure that had been rendered in the form of an Order. Challenging both the substance of the Order and its character as an Order, the party attempted to resist enforcement on the basis that an Order is not a final definitive Award as required by the US Federal Arbitration Act and the New York Convention.
    The 7th Circuit Court held that it is the content of a decision, not its nomenclature that determines its finality. It is on the basis of this decision that many legal pundits have concluded that US Courts are very apparently, likely to enforce any relief decisions made under Article 37 of the ICDR Rules whether they were Orders or Awards.

    Conclusion
    The Experience of different Arbitral Institutions with  Pre-Arbitral  Interim  Relief  Procedure has confirmed its undisputed relevance in International Commercial Arbitration. EA procedures are gaining momentum and prevalence as most arbitral institutions who have recently revised their rules have incorporated EA provisions. Other institutions revising their rules are rumoured to be considering EA provisions. It is imperative that all countries give primacy to EA provisions in their Arbitration laws.
    With the ICC and the WIPO being the latest institutions to adopt EA procedures it is perhaps timely to reflect on what challenges and limitations have been experienced in other institutions and jurisdictions and what lessons can be learnt in the future.
    Being in its nascent stage the important lesson to be learnt from the experience of other institutions and jurisdictions is that the legal effect of EA decisions can remain ambiguous, particularly with respect to enforcement. Singapore and the United States and their pro-EA stance provide examples of how some of these ambiguities may be addressed. Austria and Switzerland have also enacted laws to establish the legal position of EAs. However, questions still remain as to how EA decisions will be enforced outside the jurisdiction and what sanctions should apply to parties who refuse to honour the decisions of EAs.
    Adoption of EA procedures certainly intensifies flexibility and autonomy to parties seeking to resolve disputes. It is a relatively novel and untested modus operandi with significant questions emerging regarding the relationship of EAs to existing legal frameworks. However its latent capability to assist parties in securing an imperative and expedited relief is significant as seen in the few case studies. However, in the current early stages of its development, it is critical that parties are aware of Emergency Arbitration limitations particularly with respect to enforceability both domestically and internationally.