Is emergency arbitrator relief available? Is this frequently used?
International Arbitration (2nd Edition)
Emergency arbitrator relief is not available in Chile. Thus, if the arbitral tribunal has not yet been constituted, the only alternative to the party seeking interim relief is to resort to the ordinary jurisdiction, as stated in Article 9 of the International Commercial Arbitration Law No 19.971. In such cases, the interim measures requirement will be regulated under the rules of the Chilean Code of Civil Procedure.
According to the rules of arbitration of the Commercial Arbitration Centre of the Portuguese Chamber of Commerce and Industry, until the tribunal is constituted (and unless otherwise agreed by the parties), any party may request that urgent measures may be granted by an emergency arbitrator, appointed by the Chairman of the Centre.
As far as we are informed, emergency arbitrator relief hasn’t been frequently requested.
Emergency arbitrator relief is not available in Luxembourg.
The possibility of emergency arbitrator relief is not stipulated in the PILA or the CPC. However, a state court can at all times (i.e. even before constitution of an arbitral tribunal) be seized to obtain interim relief.
The revised Swiss Rules in effect as from 1 July 2012 introduced the possibility to apply for emergency arbitrator relief. Pursuant to art. 43 Swiss Rules a party requiring urgent interim measures before the constitution of the arbitral tribunal may submit an application for emergency relief to the secretariat of the arbitration court. Based on the statistics of the Swiss Chambers' Arbitration Institution, emergency arbitrator relief is not very actively used with only 3% of all cases submitted in the year 2015 representing emergency relief procedures.
Neither the ZPO nor the still-current 1998 DIS Arbitration Rules provide for emergency arbitrator relief. Only the DIS Sport Arbitration Rules of 2016 provide for interim relief prior to the constitution of the tribunal (section 20 (2)). The latter is rather frequently used due to the often urgent circumstances related to sport disputes (suspensions due to doping, qualifications for upcoming tournaments etc.).
However, the parties are free to agree on (institutional) rules that do include emergency arbitrator relief in arbitrations seated in Germany.
Neither the Arbitration Act nor the ICAC Arbitration Rules (including the 2018 ones) provide for the possibility of the emergency arbitrator relief.
The emergency arbitrator relief is not available neither under the Panama Arbitration Law nor under the rules of the two main arbitration centers.
The concept of emergency arbitrator relief was not envisaged by the UAE CPC. Neither the DIAC nor the ADCCAC currently provide this service.
The new draft DIAC rules do however state that the services of an emergency arbitrator will be offered in the future.
UAE Off-Shore Jurisdictions
Article 9(b) of the DIFC-LCIA Arbitration Rules provide for the appointment of an emergency arbitrator.
The International Chambers of Commerce announced in 2017 that it would open a representative office in Abu Dhabi located in the ADGM. The ICC Arbitration Rules (2012) and the ICC Arbitration Rules (2017) both provide the services of an emergency arbitrator.
Since 2010, the SCC Rules offers rules on emergency arbitration, which can be used to obtain a decision on interim measures before the tribunal is constituted.
The SCC has received approximately two applications a year for an emergency arbitrator. However, in 2016, the SCC saw an increase in numbers when 13 emergency arbitrator proceedings were initiated.
Since 2011, many Spanish institutions have adopted within their Rules the figure of the emergency arbitrator to decide on urgent matters before the arbitration tribunal is constituted.
Certain Spanish arbitral institutions have regulated the emergency arbitrator relief, more precisely: (i) the CIMA (Madrid’s Civil and Commercial Court); and (ii) Madrid’s Arbitration Court. As to the first Court mentioned, its Rules provide, under Annex 1, for an emergency arbitration since 2014. As to the second Court referred, its Rules provide for an emergency arbitration under article 37 and Annex 2.
Neither Serbian Law on Arbitration, nor the rules of arbitral institutions in Serbia adopted emergency arbitrator relief.
There are no specific provisions on emergency arbitrator proceedings in the ADR Act, Arbitration Law and the Special ADR Rules.
However, under the Arbitration Rules of the PDRCI, a party may apply for an Interim Measure concurrent with or following the filing of a Notice of Arbitration but prior to the constitution of the arbitral tribunal (“Emergency Relief”) by submitting an application for the appointment of an emergency arbitrator (“Emergency Arbitrator”) to PDRCI.
The emergency relief concept is very new to India. Although there is no specification laid under the Arbitration & Conciliation Act, 1996 but there are provisions both under the Delhi International Arbitration Centre under Rule 18A and under Mumbai Centre for International Arbitration under Rule 14. However, the Courts have jurisdiction to entertain an application for interim relief even prior to commencement of arbitration.
The LAM does not contain emergency arbitration relief.
No provisions are available under the Arbitration Law. However, if agreed procedures (such as agreed institutional rules) provide for such appointment, in theory this should be valid.
The Arbitration Act does not contain provisions regarding emergency arbitrator relief, for instance provisions similar to those contained in the ICC Arbitration Rules article 29. However, as mentioned in the answer to question 2 above, the arbitral tribunal may upon request order a party to take any interim measures the tribunal deems necessary based on the content of the dispute. This measure is not frequently used as such interim decisions by the tribunal cannot be enforced. Consequently, if a party requests emergency relief, it is more common to petition the courts to grant an application for a preliminary injunction. The courts have the power to grant preliminary injunctions even if a dispute is subject to arbitration.
Croatian Arbitration Act does not provide for emergency arbitrator relief. In general, interim relief may be granted only after the tribunal has been constituted. The newest version of Zagreb Rules provides that in emergency situations, in cases where there is an arbitration clause providing for the application of Zagreb Rules, the president of the Permanent Arbitration Court of the Croatian Chamber of Economy may order interim measures even before the constitution of the arbitral tribunal, which shall be reviewed by the tribunal once it is constituted.
No such relief is available under the applicable laws or under the Rules of arbitration centers currently being active in Cyprus.
French law does not address emergency arbitrators. Where institutional rules provide for the possibility to appoint an emergency arbitrator, those provisions are upheld in France as a matter of contract (Paris Court of Appeal, 29 April 2003, 2003 Rev Arb 1296). For example, the ICC Rules recognise the possibility of appointing an emergency arbitrator. According to the relevant articles, a party can seek urgent interim or conservatory measures prior to the transmission of the file to the arbitral tribunal (see Article 29 and Appendix V of the ICC Rules).
As seen in question No. 23 above, in Italy arbitrators are not allowed to issue interim relief.
The Lagos Court of Arbitration Rules 2013 (the “LCA Rules”) make provisions for emergency arbitrators. Under the LCA Rules, interim measures can be requested prior to the constitution of an arbitral tribunal. The idea of an emergency arbitrator was on the need to bridge the gap between the commencement of an arbitration and constitution of the arbitral tribunal. Under the LCA Rules, a party in need of urgent, preservatory or special measures prior to the constitution of the arbitral tribunal may apply to the LCA Secretariat for such measures and for the appointment of a Special Measures Arbitrator. This move will certainly contribute in widening the scope of interim measures available to parties to arbitration.
The concept of emergency arbitrator is alien to Austrian law. The Vienna Rules set forth an expedite procedure (Article 45), which is, however, subject to the parties agreement.
Yes. All major U.S. arbitration institutions, AAA/ICDR, CPR, and JAMS, provide for emergency arbitrator proceedings, and these procedures are being actively used. While there are not many decisions on the enforceability of measures issued by emergency arbitrators, likely due to a high rate of voluntary compliance, at least one U.S. court denied a motion to vacate an emergency arbitrator’s order, finding that ‘the interim order was not a final order and is not subject to review.’ See Chinmax Medical Sys. Inc. v. Alere San Diego, Inc., 2011 WL 2135350 No. 10-CV-2467-WQH(NLS), at *5 (S.D. Cal. May 27, 2011). More recently, in Yahoo! Inc. v. Microsoft Corp., a federal district court confirmed an order issued by an emergency arbitrator under the AAA rules, holding that the parties had ‘a clear interest in enforcing the equitable award made by the Arbitrator as soon as possible.’ 983 F.Supp.2d 310, 319 (S.D.N.Y. 2013).
No, it is not. State Court intervention remains the only available solution for interim relief prior to the constitution of the arbitral tribunal. Experienced lawyers are nevertheless aware of the problem and for that reason strongly advise in favor of arbitration clauses providing for the application of institutional arbitration rules, such as the ICC Rules, which afford parties this option.
The Israeli Arbitration Law includes no reference to the issue of emergency arbitrator relief. As clarified above (answer to question 23), the issue of the arbitrator's jurisdiction to grant temporary relief in an arbitral proceeding has not yet been answered under the Israeli law, and it is doubtful that an arbitrator has any power to provide any temporary relief under the Israeli law. However, the court has the jurisdiction to grant various temporary reliefs with respect of the arbitral proceeding.
Parties in LCIA arbitrations can apply to submit disputes to an emergency arbitrator for urgent relief pending the formation of the arbitral tribunal. The rules governing the appointment of an emergency arbitrator are set out in Article 9B of the LCIA 2014 Rules.
However, this type of relief does not appear to be frequently used. In 2016, the first application under Article 9B of the LCIA 2014 Rules for the appointment of an emergency arbitrator was made, and was rejected. This may be due to the fact that Article 9A of the LCIA 2014 Rules sets out a procedure for the expedited formation of a tribunal, which can be used as an alternative route to obtaining interim measures.
Parties can apply to the English court for interim relief under s.44 of the 1996 Act, however, it is likely that the court will not intervene where an application could be made to an emergency arbitrator (Gerald Metals SA v The Trustees of the Timis Trust & others  EWHC 2327).