· 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
· 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.
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.
claimant also filed an application for emergency interim relief.
was contended that the obligations under the contract stood fulfilled and
consequently there was no liability surviving under the bank guarantees.
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.
claimant sought emergency relief in the form of an injunction restraining the
respondent from invoking the bank guarantees.
received the application at 21.30 Singapore time.
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.
EA appointed was well recognised as a leading international arbitrator, having
sat as arbitrator in more than 170 cases and written numerous awards.
one day of his appointment, the EA established a schedule for consideration of
the application for emergency relief.
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.
EA passed an ad-interim order one day thereafter.
parties, by consent, amended the terms of the order and the main arbitral
Tribunal was constituted and the parties settled the case.
· 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
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
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.
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.
Chamber of Commerce (SCC)
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.
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.
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
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.
first case where an EA was appointed, the following were the brief facts of 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.
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).
of four other requests for interim measures were denied because they were
directed towards third party entities.
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.
claimant did not show that the sale of such assets would be to the detriment
and therefore the application for interim measures was denied.
second case study involved an Israeli claimant seeking an injunction
restraining the Georgian respondent from receiving payments pursuant to bank
claimant had provided the bank guarantees for its performance in a building
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.
third request for interim measures was granted by the EA:
was invoked for an alleged breach of a shareholders’ agreement between a Swiss
claimant and a Swedish respondent.
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.
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.
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.
(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
(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
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.
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
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.
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.
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.
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.
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
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
full Tribunal, once constituted, may also modify or vacate an interim award or
order for any reason it considers appropriate.
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
Enforcement in the United States
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
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.
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.
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.
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.
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.