The Emergency Arbitrator: The Dawn of a

New Age?

by A M I R GHAFFARI & E M M Y L O U WALTERS *

ABSTRACT
Interim and conservatory measures can play an important role in international arbitrations,
operating as holding orders preserving the status quo pending the outcome of the parties' dispute.
Often, the demand for such measures is urgent and arises before the arbitral tribunal is in place.
This article considers the role of the Emergency Arbitrator in meeting that demand. Specifically,
it considers the concerns voiced by some regarding the status of the Emergency Arbitrator and the
enforceability of his or her Order or Award. Are those concerns valid or overstated? Irrespective,
are we nonetheless embarking upon a 'new dawn' as the use and practice of the Emergency
Arbitrator takes greater hold and gains maturity?

I. INTRODUCTION
In September 2011, the International Chamber of Commerce (ICC) issued its
revised rules for International Arbitration. 1 The revised rules, which came into
force on 1 January 2012, have been well received and are a direct response to calls
from within the international business and legal communities for a more efficient
system of managing the conduct of international arbitrations.
Moreover, they improve upon existing mechanisms, and seek to introduce
solutions to perceived inefficiencies present under the 1998 rules. Amongst them,
Article 29 of the new rules makes provision for the appointment of an emergency
arbitrator in cases where urgent interim or conservatory measures are sought prior
to the constitution of the arbitral tribunal.
Whilst Article 29 is a positive response to an obvious gap in the conduct of cases
under the old rules, its emergency arbitrator mechanism is not without its
challenges. Eighteen months on, the enforceability of an emergency arbitrator's
decision continues to raise particular concerns, and is the subject of this article.

Amir Ghaffari is a Partner and Emmylou Walters is an Associate in Berwin Leighton Paisner's International
Arbitration Group.
1
http://www.iccwbo.org/Products-and-Services/Arbitration-and-ADR/Arbitration/Rules-of-arbitration/
IGC-Rules-of-Arbitration/.

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©LCIA, 2014

153
154 Arbitration International, Volume 30 Issue 1

II. T H E E M E R G E N C Y A R B I T R A T O R ' S R O O T S
The concept of an emergency arbitrator is not unique to the ICC Rules, with
similar provisions already in existence under a number of other institutional
regimes (e.g., under the rules of the Singapore International Arbitration Centre
(SIAC),2 the Arbitration Institute of the Stockholm Chamber of Commerce
(SCC), 3 the International Center for Dispute Resolution (ICDR) which is
the international arm of the American Arbitration Association (AAA)4 and the
Australian Centre for International Commercial Arbitration (ACICA)).5 The
revised version of the Swiss Rules of International Arbitration, to apply to all
arbitrations commenced on or after 1 June 2012, also include an equivalent
provision. 6 More recently, the new rules governing the Panel of Recognised and
International Market Experts in Finance, also known as PRIME Finance, provide
for an emergency arbitrator. 7 The earliest of these is the ICDR provision which
came into effect on 1 May 2006.
This article therefore also looks at how those emergency arbitrator provisions
already in existence have been received and, to the extent that there is available
data, at whether their enforcement has proved difficult.

III. T H E I M P O R T A N C E O F E A R L Y I N T E R I M A N D
CONSERVATORY MEASURES
Reference to 'interim and conservatory measures' is taken from the English version
of the ICC Rules. 8 In the Model Law and the UNCITRAL Rules they are known
as 'interim measures of protection', 9 whilst in the Swiss law governing international
arbitration they are referred to as 'provisional or conservatory measures'. 10
Whatever their designation, they operate as holding orders pending the outcome
of the parties' arbitration and are not intended to pre-judge the outcome of the
dispute.
Interim and conservatory measures can take a variety of forms. Two measures
commonly sought by parties to arbitration are: (i) measures to preserve evidence
that is said to be relevant to the dispute and necessary for its fair disposition, and
(ii) measures to prevent a counterparty, typically the defendant, from moving assets
out of the arbitral tribunal's juridical reach before the arbitral tribunal has had an
opportunity to render a final award which may impact upon those assets.

2
Rule 26.2 and Sch. 1, SIAC Rules (2010).
3
Article 32 and Appendix II, SCC Rules (2010).
4
Article 37, ICDR Rules (2006).
5
Article 28 and Sch. 2, ACICA Rules (2011).
Article 43, Swiss Rules of International Arbitration.
7
Article 26b and Annex C, PRIME Finance Rules.
8
Article 28, ICC Rules.
9
Article 17, UNCITRAL Rules.
0
Swiss Private International Law Act 1987, Ch. 12, Art. 183.
 The Emergency Arbitrator: The Dawn of a New Age? 155

The availability of interim measures can therefore play an important role in

ensuring that the ensuing arbitration proceedings can be conducted fairly and that
the benefit of the tribunal's subsequent award can be enjoyed.

IV. T H E R I S E O F T H E E M E R G E N C Y A R B I T R A T O R
However, a problem can arise where a party seeks an interim or conservatory
measure before the arbitral tribunal is in place. This is not uncommon as it can take
months for the arbitral tribunal to be constituted, during which time one of the
parties to the dispute may consider it necessary to take active steps so as to preserve
certain evidence or assets. What then is a party seeking an urgent interim or
conservatory measure to do?
Preliminarily, this is neither a new problem nor one that has not been tackled by
certain institutions in the past. For example, the rules of the Netherlands
Arbitration Institution (NAI) provide for the appointment of a single arbitrator by
the NAI for the very purpose of resolving interim measures issues prior to the
constitution of the arbitral tribunal; the London Court of International Arbitration
(LCIA) allows the expedited formation of the tribunal in cases of 'exceptional
urgency';^ and the ICC has itself sought to address the problem, some twenty years
ago, in establishing its Pre-Arbitral Referee Procedure in 1990, although the
adoption of the ICC Rules is not itself sufficient to enable a party to utilize the
1990 Pre-Arbitral Referee Procedure. That mechanism is only available where
the parties have signed a separate agreement in writing agreeing to its use, which
may often not be the case.
In most instances, however, the only option open to a party requiring urgent
interim or conservatory measures prior to the constitution of the arbitral tribunal
is to approach the court at the seat of the arbitration, or in the jurisdiction of the
respondent's assets, for an interim order. This may be unproblematic, and in some
cases may be preferable — for example where the relevant national court has a
good track-record in dealing with urgent applications, as is the case in England.
However, it bears remembering that it is often the parties' reservations about a
particular judicial system that led them originally to elect arbitration as the
method to resolve their disputes. In some jurisdictions the attitude of the court may
be unpredictable, a party may have negative perceptions of the court's ability to
adequately deal with the dispute or it may simply prefer to keep the dispute out of
the public domain.
There is thus an increasing demand for a quick and effective process to apply for
urgent and conservatory measures within the framework of the underlying
arbitration and without redress to the national courts. Step forward the emergency
arbitrator.

Article 9, LCIA Rules.

156 Arbitration International, Volume 30 Issue 1

V. 2012 I C C R U L E S
With these types of issues in mind, Article 29 (and Appendix V) of the revised ICC
Rules paves the way for parties to ICC arbitrations to seek interim or conservatory
measures from an emergency arbitrator.
That is not to say that the new rules prevent a party from approaching the
courts at the seat of the arbitration for interim measures. 12 Article 29(7) makes this
clear in providing that:

[t]he 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.

It goes on to provide that any such application to the national courts for urgent
interim or conservatory measures 'shall not be deemed [... ] an infringement or a waiver
of the arbitration agreement'. The only requirement is that 'any measures' taken by the
judicial authority must be notified to the ICC Secretariat 'without delay'.
In fact, in certain circumstances, including where a party seeks relief against a
third party, Article 29 has no application whatsoever and there is therefore no
option but to make an application to the relevant national court. 13
Further, the ICC's new emergency arbitrator provision is only available to
parties whose arbitration agreement was concluded after the new rules came into
force at the start of 2012, and so long as the parties have not agreed to opt out of
the provision or agreed to another pre-arbitral procedure. 14
Subject to these narrow limitations, the procedure for appointing an emergency
arbitrator is relatively straightforward. A party requiring the assistance of an
emergency arbitrator must submit an application for emergency measures to the
ICC Secretariat. The application must contain details of the parties, a description
of the circumstances giving rise to the application and the reasons why the
applicant needs urgent interim or conservatory assistance. The application must
also contain proof that the applicant has paid the United States Dollars (USD)
40,000 fee required by the ICC. Assuming the application is in order, an
emergency arbitrator will then be appointed by the President of the ICC Court
within as short a time as possible and 'normally within 2 days'.15
Prior to his or her appointment, the emergency arbitrator must sign a statement
of acceptance, availability, impartiality and independence. This is the same
requirement as that found in Article 11(2) of the ICC Rules in relation to
arbitrators nominated as tribunal members. In the same vein, the responding party
is entitled to challenge a particular emergency arbitrator's appointment but must
do so within three days. If a challenge is made, it falls to the ICC Court to decide

12
Article 29(7), ICC Rules.
13
Article 29(5), ICC Rules.
14
Article 29(6), ICC Rules.
15
Appendix V, Art. 2(1), ICC Rules.
 The Emergency Arbitrator: The Dawn of a New Age? 157

its outcome once any party wishing to do so has provided its written comments on
the proposed emergency arbitrator within the time stipulated by the ICC
Secretariat.
Once the emergency arbitrator is in place, he or she must establish a procedural
timetable within two days of receiving the case file from the ICC Secretariat and
deliver a decision in the form of an Order within fifteen days. 16 The emergency
arbitrator's Order must be made in writing, signed and dated, and it must state the
reasons upon which it is based.
Unless a party has expressly opted-out of the ICC's new emergency arbitrator
provision, it will be bound by the emergency arbitrator's decision,17 as is in fact the
case under other comparative emergency arbitrator provisions. 18 That decision
may, however, be modified, terminated or annulled by the emergency arbitrator
upon a reasoned request by any party. The emergency arbitrator's decision will
also cease to bind the parties in a number of other situations, including as soon as
the arbitral tribunal in the subsequent main proceedings renders its Final Award or
where those arbitral proceedings are terminated.

VI. H O W D O T H E 2012 I C C R U L E S C O M P A R E ?
Although the ICC's emergency arbitrator procedure is broadly similar to
equivalent provisions under other institutional rules (e.g., SIAC, SCC and
ACICA), there are some differences between the institutions.
Some of those differences are slight and concern time limits only. For example,
whereas in all instances the emergency arbitrator is required to act with urgency,
what that means in practice varies depending on the institution. Under the SIAC
Rules, an emergency arbitrator may be appointed within one business day of
receipt of the application and must provide a schedule to dispose of the application
within two business days of his or her appointment. 19 There is, however, no time
limit by which he or she must render an Order or Award under the SIAC Rules
(which, incidentally, is also the position under the LCIA's Article 9 'exceptional
urgency' procedure). In contrast, the SCC Rules require a decision within five days
from the date on which the application is referred to the emergency arbitrator (as
opposed to the fifteen days under the new ICC rules).20 There are also some
differences between the institutions when it comes to what constitutes an
'emergency'. Under the SIAC Rules, it is for the Chairman (of SIAC) to determine
whether or not the application constitutes an emergency. 21 In contrast, there is no
such requirement under the ICC or SCC Rules, where the emergency arbitrator

16
Article 6 of Appendix V, ICC Rules.
17
Article 29(2) and Art. 6(6) of Appendix V, ICC Rules.
18
For example, Sch. 2(4), ACICA Rules; Sch. 1(9), SIAC Rules; Appendix 11(9), SCC Rules.
19
Schedule 1, Art. 2, SIAC Rules.
20
Article 8(1) of Appendix II, SCC Rules; Art. 6 of Appendix V, ICC Rules.
21
Schedule 1, Art. 2, SIAC Rules.
158 Arbitration International, Volume 30 Issue 1

simply has the same powers as the arbitral tribunal has to order interim or
conservatory measures.
However, not all the differences are minor. A key aspect which distinguishes the
2012 ICC Rules from other institutions concerns the form in which the emergency
arbitrator may render his or her decision. Whereas under the other institutional
rules the emergency arbitrator's decision may take the form of either an Order or
an Award, 22 the new ICC Rules expressly provide that the emergency arbitrator's
decision may only take the form of an Order. 23 This particular difference concerns
more than just form, and carries with it important implications when it comes to
enforcing an emergency arbitrator's decision.

VII. I T ' S ALL A B O U T E N F O R C E A B I L I T Y

Clearly, for there to be of any value in having an emergency arbitrator, his or her
decision — whatever form it takes — must prove readily enforceable.
Yet, despite the fact that all of the institutional rules providing for an emergency
arbitrator expressly state that an emergency arbitrator's decision shall bind the
parties, there remain doubts in certain quarters that none provide a clear route for
their enforcement in circumstances where a party fails voluntarily to comply with
the emergency arbitrator's decision.
In this context, three (perceived) concerns merit particular attention:

(1) the uncertainty concerning the status of an emergency arbitrator;

(2) the fact that his or her decision is of an 'interim' nature; and
(3) its designation, particularly as an Order rather than an Award.

(a) Is an Emergency Arbitrator an Arbitrator?

The first hurdle has to do with the status of the emergency arbitrator and raises a
concern that the emergency arbitrator may lack standing as an arbitrator under
most national arbitration laws, including the English Arbitration Act 1996 (the
'1996 Act').
Taking the 1996 Act as an example, although its language variously refers to the
arbitral tribunal or to the arbitrators it makes no reference to an emergency
arbitrator. Sections 41 and 42 of the 1996 Act, which respectively empower the
tribunal to make peremptory orders and the English Courts to enforce those
orders, both expressly concern orders made by the arbitral 'tribunal'.24 This raises a
number of related questions. Is, therefore, an emergency arbitrator not empowered
to act under the 1996 Act? Can he or she not make a peremptory order under

Schedule 1(6), SIAC Rules; Art. 32(3), SCG Rules; Sch. 2(3.3), ACICA Rules; Art. 37 ICDR.
Article 29(2), ICC Rules.
The same is true of other sections, including ss 29 (Immunity of arbitrator), 30 (competence of tribunal to
rule on its own jurisdiction), 33 (General duty of die tribunal) and 34 (Procedural and evidential matters)
which also refer only to arbitrators or the arbitral tribunal.
 The Emergency Arbitrator: The Damn of a New Age? 159

section 41 that is capable of enforcement by the English Courts under section 42?
Put simply and in more general terms, is an emergency arbitrator in fact an
arbitrator under the 1996 Act (or, indeed, under other national arbitration laws
which similarly do not expressly account for his or her role)?
Ultimately, the answers to these questions are likely to turn upon whether
emergency arbitrators are deemed arbitrators granting relief in the course of
proceedings. There is a paucity of authoritative guidance on the issue, however.
Although a strict reading of the 1996 Act would seem to indicate that its provisions
do not apply to emergency arbitrators, the authors respectfully suggest that the
English courts, if asked to consider the issue, might adopt a purposive approach
and establish a welcome precedent by finding that the provisions of the 1996 Act,
where relevant, also apply by necessary and logical implication to the emergency
arbitrator sitting in England and Wales or Northern Ireland.
Until such a time, however, and perhaps in any event, the better course might be
to augment the 1996 Act with a provision recognizing the role of the emergency
arbitrator. Nor would it be unique to do so. In Singapore, the International
Arbitration (Amendment) Act 2012, which came into force on 1 June 2012,
amended the definition of the arbitral tribunal to include 'an emergency arbitrator
appointed pursuant to the rules of arbitration agreed to or adopted by the parties including the rules
of arbitration of an institution or organisation'?^ This is a clear response to the emerging
role of the emergency arbitrator and, in the case of international arbitrations
seated in Singapore, to Rule 26.2 of the SIAC Rules which allows the parties to
arbitration to seek the assistance of an emergency arbitrator before the arbitral
tribunal has been formed. Indeed, the explanatory statement accompanying the
Bill preceding the amendment stated its objective in clear terms, which was to
clarify that orders and awards given by emergency arbitrators may be enforceable
by the Singapore courts in the normal way.26
The steps recently taken in Singapore are to be encouraged and it is suggested
that, in due course, they may provoke similar moves by legislative bodies in other
jurisdictions, including in England, to amend their national arbitration laws so as
to provide greater certainty as to the proper status of an emergency arbitrator.

(b) Is an Interim Decision Enforceable?

Any uncertainty surrounding the status of the emergency arbitrator aside, there
are two further potential hurdles which are perhaps more troublesome.
The first of these concerns the 'interim' nature of the emergency arbitrator's
decision. By its nature, the emergency arbitrator's role is to offer a temporary
solution pending the formation of the arbitral tribunal. It is also the case that the
arbitral tribunal, once appointed, may overturn the emergency arbitrator's

Section 2(a).
http://www.parliament.gov.sg/sites/default/files/International%20Arbitration%20(Amendment)%20Bill
% 2010-2012.pdf.
160 Arbitration International, Volume 30 Issue 1

interim order or award. 27 Accordingly, an emergency arbitrator's decision is not a

final decision in the everyday sense. Conceptually, this raises little or no difficulty.
However, in practical terms, the temporary or 'interim' nature of the emergency
arbitrator's role exposes an issue when it comes to enforcing his or her decision.
The question lying at the heart of the issue is whether interim measures ordered by
an emergency arbitrator may be enforced if they are not in fact 'final'? To answer
this question, one needs to pose another question: can only 'final' awards be
confirmed (or vacated) under the applicable national regime or, where relevant,
under the 1958 United Nations Convention on the Recognition and Enforcement
of Foreign Arbitral Awards (the 'New York Convention')? If so, there is a
considerable risk that an emergency arbitrator's decision, whether in the form of
an Order or Award, will lack sufficient finality for the purposes of its enforcement.
Answering these questions is not straightforward, not least of all because
different national courts have approached the broader issue of whether an arbitral
tribunal's interim decision lacks finality for the purposes of enforcement in
different ways. Although there is a scarcity of case law with which to illuminate the
issue as it relates specifically to decisions made by emergency arbitrators, some
guidance can nonetheless be taken from national court decisions which have
considered the standing of an arbitral tribunal's interim decisions.
In some jurisdictions, the position appears relatively clear. In Sweden, for
example, a tribunal's interim measures, whether in the form of an Order or
Award, are not enforceable through the Swedish courts and the party seeking the
interim measures would need to approach the court for an enforceable decision.28
It follows that an emergency arbitrator's interim decision would also not be
enforceable through the national courts. In contrast, in other jurisdictions such as
Switzerland 29 and Hong Kong 30 the relevant national legislation allows national
courts to enforce interim measures ordered by an arbitral tribunal (although there
is yet to be any definitive guidance from either jurisdiction as to whether the same
would apply to an emergency arbitrator's decision).
Similarly, as far as the US courts are concerned, interim measures - although
often temporary in fact — are also final for enforcement purposes, under both the
Federal Arbitration Act 31 (which is the primary US federal law applicable to
almost all domestic and international arbitration awards) and the New York
Convention. In Pacific Reinsurance Management Corp. v. Ohio Reinsurance Corp., the court
held that awards involving the preservation of assets that are the subject of the

See Art. 29(3), ICC Rules and comparative provisions Art. 5 of Sch. 2, ACICA Rules; Art. 7 of Sch. 1, SIAC
Rules; Art. 9(5) of Appendix II, SCC Rules.
Section 27 of the Swedish Arbitration Act (Lag 1999:116).
Article 183(2) of the PIL Act provides that "If the party concerned does not comply voluntarily, the arbitral
tribunal may request the assistance of the judge with jurisdiction who shall apply his own law."
Section 2GG of Arbitration (Amendment) Ordinance no 2 of 2000 provides that "[a]n award, order or
direction made or given in or in relation to arbitration proceedings by an arbitral tribunal is enforceable in
the same way as a judgment, order or direction of the Court that has the same effect, but only with the leave
of the Court or a judge of the Court. If that leave is given, the Court or judge may enter judgment in terms
of the award, order or direction."
9 U.S.C. Sec. 1 et seq.
 The Emergency Arbitrator: The Dawn of a New Age? 161

underlying arbitration proceedings are considered final awards and can be

reviewed for confirmation and enforcement by the courts. 32 The court in Arrowhead
Global Solutions v. Datapath Inc. ruled that:

arbitration panels must have the power to issue temporary equitable relief [. .. ] and district
courts must have the power to confirm and enforce that equitable relief as 'final' in order for the
equitable relief to have teeth. 33

In a similar vein, in Banco de Seguros del Estado v. Mutual Marine Office, the court held
that it was not its role 'to undermine the comprehensive grant of authority to arbitrators by
prohibiting an arbitral security award that ensures a meaningfulfinalaward',.34 The general
message from these, and other similar US cases 35 is that interim or conservatory
measures granted by arbitral tribunals are likely to be treated as 'final' for
enforcement purposes.
At least one US court has gone further and looked specifically at the standing of
an emergency arbitrator's decision. In May 2011, the United States District Court
of the Southern District of California had to consider whether a sole arbitrator's
interim Order made pursuant to the emergency arbitrator provisions of Article 37
of the ICDR Rules could be enforced. In Chinmax Medical Sy terns Inc v. Alere San Diego
Inc.,36 a sole arbitrator's interim Order required Chinamax to take certain
conservatory measures within ten days, stating that the Order would 'remain in effect
pending review qfthejull arbitration tribunal, once appointed, and thereafter as the tribunal may
order'. Rejecting Chinamax's application to have the Order set aside, the court first
considered the decision in Pacific Reinsurance Management Corp. v. Ohio Reinsurance
Corp. in which that court confirmed that the 'enforcement of [interim awards], when
appropriate, is [...] essential to preserve the integrity of the [arbitral] process'. Adopting a
similar approach, the court in Chinmax Medical Sytems Inc v. Alere San Diego Inc. then
went on to rule that 'temporary equitable orders calculated to preserve assets or performance
needed to make a potentialfinal award meaningful [... ] arefinalawards that can be reviewed
for confirmation and enforcement by the district courts under the [Federal Arbitration Act]. ^ 7
Closer to home, the English position derives from the 1996 Act, the effect of
which is to transfer from the national courts to the arbitrators the interim and
procedural powers necessary to the conduct of the arbitration, subject only to
contrary agreement between the parties. Section 38 (which confers certain general
powers exercisable by the tribunal, including, in section 38(4) the power to make
orders in respect of property which is the subject matter of the proceedings) and
section 39 (which empowers the tribunal to grant interim relief) broadly define the
powers of the tribunal, although in the case of section 39 the power to order

935 F.2d 1019 (9th Cir.) (1991).

166 Fed. Appx. 39 (4th Cir.) (2006).
344 F.3d 255 (2d Cir.) (2003).
e.g., Yonir Technologies v. Duration Systems 2002 WL 31681198 244 F. Supp. 2d 195 (2d. Cir.) (1992); Sperry Ml
Trade v. Israel, 689 F.2d 301 (2d Cir.) (1982).
Case number 10cv2467 WQH (NLS), (S.D. Cal. 8 Dec. 2010).
At para. 15.
162 Arbitration International, Volume 30 Issue 1

provisional relief is only exercisable by the tribunal where it has been conferred by
the agreement of the parties, and any 'order' made pursuant to section 39 shall be
subject to the tribunal's 'final adjudication; and the tribunal'sfinalaward [ . . . ] ' . Section
39 was a new addition to the 1996 Act, before which the position had been that
tribunals did not have the power to grant provisional relief.38
The 1996 Act also retains fall-back judicial powers over these matters, in
sections 42 and 44, but in essence resort may only be had to the English courts in
circumstances where the tribunal lacks the necessary authority or powers. Section
42, as already mentioned, permits the enforcement of any peremptory order of the
arbitrators by the national courts, provided that the parties have not contracted
out the resort to the courts and so long as the two pre-conditions in section
42(3)—(4) have been met (i.e., that the time for compliance with the peremptory
order has passed and the applicant has exhausted any available arbitral process).
Together, therefore, sections 39, 41 and 42 of the 1996 Act provide the basis
upon which a party to an arbitration with its seat in England and Wales or
Northern Ireland may seek provisional relief and, in the case of non-compliance,
have that relief enforced by the national courts.
The question is whether the 1996 Act empowers an emergency arbitrator to
grant interim or conservatory measures. As already discussed, the answer depends
on whether the emergency arbitrator is considered an arbitrator granting relief in
the course of proceedings. For the reasons previously explained, the authors' view
is that emergency arbitrators must impliedly or otherwise be able to draw upon the
same powers afforded to the arbitral tribunal under the relevant provisions of the
1996 Act, including the power to grant interim relief. In this way, it is suggested
that if tested the English position would benefit from following the US approach.

(c) Interim 'Award' or Interim 'Order'?

The third, and final, concern has to do with the designation of an emergency
arbitrator's decision as an Order or an Award.
As already noted, the new ICC Rules expressly stipulate that the emergency
arbitrator's decision shall take the form of an Order. 39 In contrast, the SIAC, SCC,
ACICA and ICDR rules empower the emergency arbitrator to order or award
interim and conservatory relief.40 The question is whether it really matters which
nomenclature is used, particularly given that none of the major international
conventions or arbitration rules contain a definition of either an Award' or an
'Order'. 41

The Kostas Melas [1981] 1 Lloyd's Rep 18.

Article 29(2), ICC Rules.
Schedule 1(6), SIAC Rules; Art. 32(3), SCC Rules; Sch. 2(3.3), ACICA Rules; Art. 37 ICDR.
This is not to say that attempts have not been made. In 1984, the Working Group drafting of the
UNCITRAL Model Law agreed that it would be useful to include a definition of an arbitral 'award'
particularly in the context of an application to set an award aside. Their proposed definition was as follows:
"'award' means afinalaward which disposes ofall issues submitted to the arbitral tribunal and any other decision ofthe arbitra
whichfinallydetermine [sic] any question of substance or the question of its competence or any other question ofprocedure bu
in the latter case, only if the arbitral tribunal terms its decision an award' (Seventh Session of the Working Group on
 The Emergency Arbitrator: The Dawn of a New Age? 163

The authors' view is that it does not. Instead, what really matters is the true
nature and effect of the decision in question based on a simple and practical
approach. Does the decision, whether in the form of an Order or an Award fully
address and determine the particular issue in question? If so, it ought properly to
be enforceable.
Two important decisions coming out of the French and US courts would seem
to agree. Although both cases concern the decisions of arbitral tribunals, as
opposed to those of an emergency arbitrator, it is suggested that there is no cogent
reason why the same approach should not be taken regardless (subject, of course,
to the obvious limitations of an emergency arbitrator's decision, for example that
it can subsequendy be overturned by the arbitral tribunal proper, once
constituted).
In Braspetro Oil Services Company v. The Management and Implementation Authority of the
Great Man-Made River Project,^ the parties' dispute was referred to ICC arbitration
following termination of their agreement to drill certain Libyan oil wells. On the
question of liability, the tribunal rendered a partial Award in the respondent's
favour. However, in the course of its submissions on issues to do with quantum, the
respondent disclosed certain documents which it had not disclosed during the first
liability stage. Braspetro Oil, therefore, applied to the tribunal asking it to review
its partial Award on liability, which the tribunal refused to do in the form of an
Order. In turn, Braspetro Oil applied to the Paris Court of Appeal seeking an
annulment of the tribunal's Order. In ruling on the appeal, the French court held
that l[t]he qualification of [a decision as an] award does not depend on the terms used by the
arbitrators or by the parties'. The Paris court went on to say that, on the facts before it,
the arbitrators had handed down a reasoned decision in which they had
considered, in detail, the arguments of the parties and had '.«)fo«[d], in afinalmanner,
the dispute between the parties concerning the admissibility of [the Claimant's] request for a
review'. In doing so, and although the tribunal had itself designated its decision as
an Order, the Paris Court of Appeal approached the issue by looking at the content
of the tribunal's decision and not its actual designation.
Likewise in Publicis Communications and Publicis SA v. True North Communications
Inc,i3 the US Court of Appeals for the Seventh Circuit was asked to enforce a
tribunal's Order, made in an LCIA arbitration, that the respondent produce
certain key documents. Before the US court, the respondent opposed the
application for enforcement on the basis that the tribunal's decision was merely an
interim Order and that only Awards are final for enforcement purposes. The US
court disagreed, ruling that:

International Contract Practices (New York, 6—17 Feb. 1984), Report of the Working Group on the work of
its seventh session (A/CN.9/246-6 March 1984) at para. 192). However, as is clear from the Working
Group's report, the drafters were concerned about the definition in relation to procedural matters and
decided that without further time to consider the implications it should be excluded from the Model Law.
Paris Cour d'Appel (1 Jul. 1999); (1999) 14 Mealey's Intl Arb Rep 8, G-l-G-7.
US Court of Appeals for the Seventh Circuit, Publicis Communication, et al v. True North Communications Inc., 206
F. 3d 725 (14 Mar. 2000).
164 Arbitration International, Volume 30 Issue 1

Publicis' position is that the arbitral ruling can be final in every respect, but unless the document
bears the word 'award' it is not final and is unenforceable. This is extreme and untenable
formalism. The New York Convention, the United Nations arbitration rules, and the
commentators' consistent use of the label 'award' as interchangeable with 'final' does not
necessarily mean that synonyms such as decision, opinion, order, or ruling could not also be final.
The content of the decision - not its nomenclature - determines finality.44

In ordering that True North comply with the decision of the arbitral tribunal, the
US court added that 'a ruling on a discrete, time sensitive issue may be final and
ripe for confirmation even though other claims remain to be addressed by the
arbitrators'.
The approach taken in both Brasoil and Publicis is surely correct.

VIII. T H E U L T I M A T E S A N C T I O N F O R N O N -
COMPLIANCE?
The preceding section began by making the obvious, but important, point that
whatever its form an emergency arbitrator's decision must be readily enforceable
to have the desired effect. It then oudined three perceived hurdles to enforcement
and offered at least one view that none are as problematic as some would suggest.
Whilst such a discussion is important, it is similarly important when one speaks
of enforcement to remember that the issue of enforcement will only arise where a
party against whom an Order or Award is made fails voluntarily to comply with it.
Happily, in practice, most parties will voluntarily comply, and there are a number
of underlying reasons why that might be the case.
For example, some arbitral rules will require the parties to undertake to comply
with a decision of an emergency arbitrator. In such cases, a failure to do so may
also constitute a breach of contract and give rise to a damages claim. Article 29(2)
of the new ICC Rules is a good example of such a provision. It provides that '[t]he
emergency arbitrator's decision shall take the form of an order. The parties undertake to comply
with any order made by the emergency arbitrator'. Similar provisions are found in the
ACICA Rules, 45 the SIAC Rules 46 and the SCC Rules. 47
The ICC Rules provide a further step aimed at encouraging party compliance.
Article 29(4) of the ICC Rules empower the (subsequendy formed) arbitral
tribunal to reflect a party's non-compliance with an emergency arbitrator's
decision, in its final award. Article 29(4) provides that:

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.

At para. 9.
Schedule 2, Art. 4.2.
Schedule 1(9).
Appendix II, Art. 9(3).
 The Emergency Arbitrator: The Dawn of a New Age? 165

Additionally, some national laws may impose penalties where a party fails to
comply with a tribunal's interim decision that might also apply mutatis mutandis to
interim Orders or Awards made by an emergency arbitrator. An example of this is
the 2011 French New Decree 48 which amends Article 1468 of the French Code of
Civil Procedure so as to empower arbitral tribunals to impose penalties on parties
failing to comply with an order for conservatory and interim measures.
Finally, the parties will be aware that a tribunal can draw negative inferences
from their non-compliance, such as a failure to comply with an order requiring the
preservation or production of evidence. Parties may well consider that the
arbitrators, even if only subconsciously, will have regard to the parties' conduct
throughout the process, when reaching their final decision on the merits. 49

IX. T H E E M E R G E N C Y A R B I T R A T O R P R O V I S I O N S I N
PRACTICE
There is, unsurprisingly, little by the way of comparative data to show how the
various institutional emergency arbitrator procedures are working in practice. This
is because the use of emergency arbitrators remains relatively infrequent, but as
time passes the hope is that an increasing number of working examples will
indicate how the emergency arbitrator's role has been received.
Current indications are that it is positively viewed. An increasing number of
institutions are incorporating emergency arbitrator provisions within their rules
and the number of parties to arbitration taking advantage of emergency arbitrator
procedures is on the rise.
Three institutions lead the way in this regard and their limited statistics show, if
nothing else, that their emergency arbitrator mechanisms are being tested out by
their users.
In the first year in which recourse was available under the SCC rules to an
emergency arbitrator, four applications were made. We understand that, as at
September 2013, the total has risen to six. Clearly, very little can be drawn from
such a limited number of cases. What is interesting, however, is that the procedures
appear to be working effectively. In all cases an emergency arbitrator was
appointed within the required twenty-four hours. Two decisions were rendered
within five days (as required under the SCC Rules) and the other two were
rendered after an extension was agreed. The breadth of the party nationalities
involved, and the values at stake, are also interesting. The four cases involved eight
different jurisdictions with parties originating from Cyprus, Israel, Georgia,
Switzerland, Norway, Finland, Sweden and the Netherlands; and the value of the
claims ranged from Euros (EUR) 600,000 to USD 145,000,000. Although three of
the four applications for emergency relief were rejected, there is nothing to suggest
that that had anything to do with the emergency arbitrator mechanism under the

Decree No. 2011-48 of 13 Jan. 2011. These provisions apply to arbitrations commenced after 1 May 2011.
Bond, The Mature of Conservatory and Provisional Measures, in I C C , Conservatory and Provisional Measures in
International Arbitration 16 (1993).
166 Arbitration International, Volume 30 Issue 1

SCC rules. Rather, in those three cases the emergency arbitrators came to the view
that an emergency interim order was not in fact justified. In case number 139/
2010, for example, the claimant applied for emergency relief enjoining the
respondent from collecting or receiving monies under certain bank guarantees.
The emergency arbitrator rejected the application on the basis that the claimant
had not shown that it would suffer an irreparable harm unless its application was
granted. In case 144/2010, the application for interim measures was also refused
but for a different reason. There, the emergency arbitrator found that the
claimant's application for an interim order requiring the respondent to deliver
products at a fair market value was not in fact an application for interim measures,
but rather an attempt to obtain a judgment on the merits.
In contrast, to date, there had been twenty-eight emergency arbitrator
applications made pursuant to the ICDR rules. The average time it took from
filing the request to the emergency arbitrator issuing his or her interim award was
three weeks. 50 These cases provide examples of the wide variety of interim
measures that may be awarded by an emergency arbitrator including prohibiting
the dissolution of a legal entity or the distribution of assets, and prohibiting the
removal of equipment from a construction site. They also indicate that the role of
the emergency arbitrator is not to make a finding on the matters that fall to be
decided by the arbitral tribunal. Thus, in one ICDR application, the emergency
arbitrator refused a request for a declaratory judgment by reason of the fact that
his purpose and role was 'not to anticipate the decision on the merits but to preserve the status
quo'.51
In Singapore, as at September 2013, there have been twenty-seven applications
made to emergency arbitrators under the SIAC rules. 52 All twenty-seven
applications were accepted by SIAC and appointments were made in all cases.
Although there is very limited information available in each case, it is clear that the
emergency arbitrator mechanism is being deployed with relative urgency. In the
first example of its use, the emergency arbitrator was appointed within one day
and established a procedural timetable the following day. Within just over a week,
an interim order was issued. In a recent example of parties using an emergency
arbitrator pursuant to SIAC's rules, the total time taken from application to award
was just seven days. We understand that there have been three challenges to the
appointment of the emergency arbitrator. However, in all three
Committee of the Board rejected the challenge. Such challenges would now be
decided by a Committee of the Court of Arbitration.

See J Hosking and D Lindsey "Emerging Measures ofProtection: Creeping Consensus or a Passing Fancy?' available at:
http://www.chafTetzlindsey.com/wp-content/uploads/2011 /04/00070460.PDF.
G Lemenez and P Quigley "The ICDR's Emergency Arbitrator Procedure in Action: Part I: A Look at Empirical Data"
available at: http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&frm=l&source=web&cd=l&ved=0CE8
QFjAA&url=http%3A%2F%2Fwww.adr.org%2Fcs%2Fidcplg%3FIdcService%3DGET_FILE%26dDocN
ame%3DADRSTG_004356%26RevisionSelectionMethod%3DLatestReleased&ei=SZHgT4TCIZOU8gP2
oZCUDw&usg=AFQjCNHRxI51DEu6XDbxovErn6xYCAjlzA&sig2=UPj25Kefz6Stb51IihK3qw.
M Foo and Z Abdul Rahim "Emergency Relief in International Arbitration -A SIAC Perspective'''Jun. 2012 available
at: http://www.rodyk.com/front/printpage/Resources/article/379.
 The Emergency Arbitrator: The Dawn of a New Age? 167

Encouragingly, there have already been five emergency arbitrations applications

under the new ICC Rules, and in each case an order has been issued.

X. CONCLUSION
Emergency arbitrator provisions, including those introduced under the 2012 ICC
Rules, have generally been well received. Inevitably, there are concerns amongst
some over the status of the emergency arbitrator as well as the enforceability of his
or her Order or Award, as the case may be. While those concerns must not be
overlooked, it is suggested for some of the reasons explored in this article that they
have been overstated.
Although, in practice, emergency arbitrators have been deployed in only a small
number of instances, their use is bound to increase as the practice gains maturity
and the various institutional emergency arbitrator procedures become more
familiar to its users. It is trite, but true, to say that the practice of international
arbitration is in large part shaped by those who use it. It is a voluntary process and
it both survives and evolves along with the needs of the organizations that utilize
the system.
Arbitration rules on interim measures have come a long way. Prior to 1987,
national arbitration laws 53 and the UNCITRAL Model Law were silent on the
subject of interim or conservatory measures. Since then, rules and procedures for
the provision of interim or conservatory measures have been adopted and as seen
in this article, most recently, provisions for emergency measures prior to the
formation of the arbitral tribunal have gradually taken hold. As the demands for
quicker and more efficient procedures continue to increase, as they almost
certainly will, it is hoped that the role of the emergency arbitrator in appropriate
cases also continues to develop and take hold.

53
For example, the US Federal Arbitration Act, the Belgian Code Judiciaire and the French NCPC (now CPC),
Art. 1494(2).
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