Understanding Emergency Arbitrators in International Arbitration

Emergency arbitrators play a pivotal role in international arbitration by providing urgent relief before the constitution of the arbitral tribunal. This mechanism is increasingly being incorporated into the rules of leading arbitral institutions. Here we explore the necessity, appointment process, powers and enforcement of orders by emergency arbitrators.

When Are Emergency Arbitrators Needed?

Emergency arbitrators are essential when a party requires urgent interim measures to prevent the other party from dissipating evidence or assets before the a tribunal has been fully constituted. This need can arise even before the arbitration formally begins, allowing parties to seek immediate relief without resorting to national courts.

Appointment of Emergency Arbitrators

The appointment of emergency arbitrators is swift and structured. Arbitral institutions typically appoint an emergency arbitrator within 24 to 60 hours after receiving an application. This rapid appointment ensures urgent matters are addressed promptly. Institutions may require the payment of fees at the time of application and some maintain a special panel of arbitrators for emergency cases.

Powers of Emergency Arbitrators

Emergency arbitrators are granted several powers, though these vary between institutions:

• Jurisdiction: Most rules allow emergency arbitrators to rule on their own jurisdiction.
• Ex Parte Relief: Generally, emergency arbitrators cannot grant ex parte relief, with the Swiss Rules 2021 being a notable exception.
• Amending Orders: Many rules permit emergency arbitrators to amend their orders, though this is not universally applicable.

Remedies and Procedure

The procedure followed by emergency arbitrators is designed to be efficient and effective. They can grant various interim measures, such as preserving assets or evidence. Once the full tribunal is constituted, it can confirm, vary, or revoke the orders made by the emergency arbitrator, ensuring continuity and oversight.

Enforcement of Emergency Orders

Enforcing the orders of emergency arbitrators can be complex. While the orders are intended to be binding, their enforceability depends on the national laws of the jurisdiction where enforcement is sought. Institutions often include provisions to protect a party’s right to seek interim measures from national courts if needed.

Practical Tips

For Applying

• Ensure the emergency arbitrator provisions apply to your case.
• File a detailed application, including evidence of urgency and the relief sought.
• Be prepared to pay the necessary fees, promptly.

For Resisting

• Challenge the jurisdiction of the emergency arbitrator, if applicable.
• Argue against the necessity or appropriateness of the interim measures sought.

Conclusion

Emergency arbitrators are vital tools in international arbitration, providing urgent relief and maintaining the integrity of the process. By understanding their role, appointment and powers parties can effectively navigate the complexities of international arbitration and protect their interests.