Many leading arbitration institutions have adopted rules containing provisions regarding emergency arbitrators. Although the applicability of these types of provisions has been widely discussed, there is still little experience, especially regarding the enforcement of such decisions against a recalcitrant party.
What Is Emergency Arbitration?
The most widely used definition of emergency arbitration defines it as a mechanism that “allows a disputing party to apply for urgent interim relief before an arbitration tribunal has been formally constituted.”
The main advantage of obtaining interim measures through emergency arbitration is that it avoids disputes about the jurisdiction of State Courts in the presence of an arbitration agreement and allows the parties to enjoy the benefits of having their dispute resolved by an international forum, prior to the somewhat time-consuming constitution of an arbitral tribunal.
Provisions Under the Different Rules of Arbitration
The possibility of obtaining emergency arbitration awards in commercial arbitration is increasing. The first institution to adopt the mechanism was the International Centre of Dispute Resolution (ICDR), but the ICC, SCC, LCIA, HKIAC and SIAC, to name a few institutions, soon followed suit.
For instance, according to Article 29 of the 2021 ICC Arbitration Rules:
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.
In such cases, the President of the Court appoints the emergency arbitrator “within as short a time as possible, normally within two days” from receipt of the application. The emergency arbitrator then makes his or her decision within as short a time as possible, normally within 15 days of receiving the case file. Under the ICC Arbitration Rules, the decision is made in the form of an order, which the parties have an obligation to comply with.
It is also important to note that an application for emergency arbitration does not prevent the party from seeking interim measures before competent judicial authorities.
When deciding whether emergency relief should be granted, emergency arbitrators usually refer to different criteria including, but not limited to:
- The prima facie jurisdiction of the tribunal;
- A prima facie case on the merits;
- A risk of irreparable/imminent harm;
- The proportionality of the measures sought.
In investment arbitration, neither the ICSID Arbitration Rules nor the UNCITRAL Rules contain any provisions for emergency arbitrators. However, as previously noted, the SCC rules on emergency arbitration have been applied in investor-State disputes, for example, in Evrobalt LLC v. The Republic of Moldova (although the emergency arbitrator dismissed Claimant’s application for emergency measures).
Enforcement of Emergency Arbitration Decisions
The enforceability of orders made by emergency arbitrators is still questionable in most States, mainly because the primary mechanism through which enforcement is generally sought, the New York Convention, is silent on the issue. It has been submitted that because the New York Convention only applies to arbitral awards, it excludes the possibility of enforcing interim measures and emergency arbitration awards.
The UNCITRAL Model Law, based on which many States adopt their arbitration acts, does address interim relief adopted by arbitral tribunals but without regulating its enforcement. Moreover, in the absence of a clear definition, it is also unclear whether the rights provided to arbitral tribunals may also extend to emergency arbitrators.
In many jurisdictions, however, “arbitral provisional measures are enforceable through executory assistance from national judicial authorities”. Such countries include Switzerland, England, Germany, New Zealand and Egypt.
Case Law Regarding the Enforcement of Emergency Arbitration Decisions
A positive example of the enforcement of an emergency arbitrator decision has arrived from India in the form of a detailed 103-page decision of the Indian Supreme Court in the Amazon v. Future Retail case. The Supreme Court held that a SIAC Emergency Arbitration Award was enforceable in India. It is to be noted that although the underlying order was made under the SIAC Rules, the seat of arbitration was New Delhi, i.e., enforcement was sought domestically.
In another example, the Singapore High Court reached a similar conclusion when confirming the enforceability of decisions issued by a foreign-seated emergency arbitrator in the CVG v. CVH case (“I concluded that the term ‘foreign award’ in s 29 of the International Arbitration Act 1994 (2020 Rev Ed) (‘IAA’) includes foreign interim awards made by an emergency arbitrator and thus, the Award may be enforced in Singapore.”) The seat of arbitration was originally Pennsylvania. While the Singapore High Court refused to enforce the particular decision on the basis that the defendant was unable to present its case, the principle of enforceability was affirmed.
On the other hand, from the case law relating to the enforcement of emergency awards in Ukraine, barriers to enforcement have been experienced. Ukrainian courts have refused to enforce emergency awards issued both against the State and in commercial arbitration proceedings. The Kyiv Court of Appeal (KCA), and the Supreme Court of Ukraine, examined the conditions of enforcement of an emergency arbitration order issued in the so-called VEB case in 2019. One of the reasons given for refusal was the lack of jurisdiction of the emergency arbitrator because the SCC Rules valid at the time of ratification by Ukraine did not contain the emergency arbitration mechanism. The KCA also opined that Ukraine was deprived of the opportunity to present its case. These two reasons were, however, subsequently overturned by the Supreme Court. The emergency arbitration decision could still not be enforced, however, because its potential enforcement was found to be contrary to public policy by both courts, as it would preclude the execution of a previously enforced arbitral award.
There are multiple ways of facilitating the enforcement of emergency arbitration decisions, from amending the New York Convention to adopting new arbitration laws or interpreting current laws to enable enforcement. Whereas the first option is an enormous and risky task, the second and third would be welcome in the arbitration community. This could, in turn, lead to improvements in the problematic field of the enforcement of interim measures in general.
 Alnaber, R., Emergency Arbitration: Mere Innovation or Vast Improvement, Arbitration International, Vol. 35, 2019, pp. 441-472.
 Jus Mundi Wiki Notes, Emergency Arbitration, available at https://jusmundi.com/en/document/publication/en-emergency-arbitration (last accessed on 26 January 2023).
 M. Valasek and J. A. de Jong, Enforceability of interim measures and emergency arbitrator decisions, Norton Rose Fulbright International Arbitration Report, Issue 10, May 2018.
 O. Kushch, Enforcing emergency awards in Ukraine: Near miss or impossibility?, Global Arbitration Review, 2 February 2022.