Is emergency arbitrator relief available in your country? Is this frequently used?

International Arbitration (4th edition)

Argentina Small Flag Argentina

Argentine law does not have provisions on emergency arbitration relief. Therefore, if the arbitral tribunal has not yet been constituted, parties may only seek interim relief from local judicial courts.

Austria Small Flag Austria

The concept of an emergency arbitrator is not specifically regulated in Austrian arbitration law.

Bulgaria Small Flag Bulgaria

No.

United States Small Flag United States

While the FAA does not address this issue, emergency arbitrator relief is provided for by most institutions that conduct arbitrations in the United States including the AAA, CPR, and JAMS. In 2018, out of 993 commercial cases, ICDR reported 92 emergency arbitrator relief applications. The same year, the ICC reported that out of 842 cases, it received 24 applications for emergency arbitrator relief, and the LCIA reported 3 applications out of 317 cases..

Cyprus Small Flag Cyprus

No, it is not.

UAE Small Flag UAE

UAE- Federal Jurisdiction
The concept of emergency arbitrator relief was not envisaged within the UAE Arbitration Law. Neither the DIAC nor the ADCCAC currently provide this service.

UAE - Common Law 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. This office became operational in 2018.

United Kingdom Small Flag United Kingdom

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. In 2018, only three application were made, two of which were granted by the LCIA Court. 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.

There is also no clear statutory mechanism (unlike Singapore and Hong Kong) to enforce emergency orders/ awards under the 1996 Act.

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 under the relevant institutional rules (Gerald Metals SA v The Trustees of the Timis Trust & others [2016] EWHC 2327).

Singapore Small Flag Singapore

Yes. Importantly, s 2(1) of the IAA defines ‘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 organization’.

With respect to the use of emergency arbitrators in Singapore, Schedule 1 of the SIAC Rules 2016 provide a process for applying to the SIAC Registrar for emergency interim relief ‘concurrent with or following the filing of a Notice of Arbitration but prior to the constitution of the Tribunal’. SIAC Rule 30.1 (Interim and Emergency Relief) also provides that ‘[t]he Tribunal may, at the request of a party, issue an order or an Award granting an injunction or any other interim relief it deems appropriate’. The ICC Rules of Arbitration also provide for an emergency arbitrator in Art. 29, with the Emergency Arbitrator Rules appearing at App. V. In App. V, the ICC Rules of Arbitration state that ‘[t]he President [of the ICC’s International Court of Arbitration] shall appoint an emergency arbitrator within as short a time as possible, normally within two days from the Secretariat’s receipt of the Application’ (App. V, Art. 2.1), but that ‘[n]o emergency arbitrator shall be appointed after the file has been transmitted to the arbitral tribunal pursuant to Article 16 of the Rules’ (App. V, Art. 2.2).

The 2018 SIAC Annual Report indicates that there were 12 applications for emergency arbitrators in 2018 and that all of these were accepted.

South Korea Small Flag South Korea

The Arbitration Act does not provide for conservatory or interim relief by emergency arbitrators. However, for proceedings conducted under the KCAB International Arbitration Rules (the “Rules”), a party may, in accordance with Article 32(4) of the Rules, apply for “urgent conservatory and interim measures” before the constitution of an arbitral tribunal. An application for interim measures by an emergency arbitrator must be made at the same time as or after filing the request for arbitration (Appendix 3, Article 1), and the KCAB Secretariat must endeavor to appoint an emergency arbitrator within 2 business days after receiving the application (Appendix 3, Article 2(3)). The emergency arbitrator must establish a procedural timetable within 2 business days of the appointment and issue its decision on an application for emergency measure within 15 days from the appointment (Appendix 3, Article 3). However, the decision of the emergency arbitrator will cease to be effective if (i) no arbitral tribunal is constituted within 3 months of the decision granting the emergency measures; or (ii) the arbitral proceeding is terminated (Appendix 3, Article 3). There is no known statistical data on the frequency of the use of the emergency procedure.

France Small Flag France

French Law does not include provisions on emergency arbitration. However, parties can have access to an emergency arbitrator by agreeing to arbitral rules, such as the ICC Arbitration Rules or the AFA Rules, that provide for emergency arbitration procedures. Where arbitral rules provide for the possibility to appoint an emergency arbitrator, those provisions are upheld in France as a matter of contract (see with regard to the pre-arbitral referee Rules: Société Nationale des Pétroles du Congo v. Republic of Congo, Total Fina Elf E & P Congo, Paris Court of Appeal, 29 April 2003, 2003 REV ARB 1296). The number of requests for emergency arbitration before the ICC has increased to 25 in 2018 (White & Case, ICC Task Force on Emergency Arbitrator Proceedings releases findings, 15 April 2019).

Germany Small Flag Germany

German arbitration law does not provide any rules for emergency arbitrators. While the DIS Arbitration Rules have been revised in 2018, the rules do not provide for emergency arbitrator relief. The DIS Sport Arbitration Rules, on the other hand provide for interim relief prior to the constitution of the arbitral tribunal, which is due to the very specifics of sport disputes.

While the DIS Arbitration Rules foresee that the arbitration tribunal may issue interim measures, these measures require the constitution of the arbitral tribunal. Outside these measures, the parties generally resort to interim relief before the ordinary courts. However, the parties are free to agree on additional terms or institutional rules that provide emergency arbitrator relief.

India Small Flag India

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.

Indonesia Small Flag Indonesia

Neither the Arbitration Law nor the BANI Rules allow for emergency arbitration or emergency arbitrator relief.

Liechtenstein Small Flag Liechtenstein

Neither the Liechtenstein law on arbitration nor the Liechtenstein Rules contain provisions on the appointment of emergency arbitrators.

Malaysia Small Flag Malaysia

Yes, it is available under the AIAC Rules (see Schedule 3 of the AIAC Rules). However, we have yet to see such relief being frequently used in arbitration proceedings in Malaysia.

Egypt Small Flag Egypt

No, the EAL does not provide for emergency arbitrator. The CRCICA arbitral rules (2011) also do not include emergency arbitrator relief, but the CRCICA is currently considering amending its rules to include new provisions for emergency arbitrator relief.

Ecuador Small Flag Ecuador

No. Within the local or national arbitration there is no emergency arbitrator provisions. In international arbitration subject to arbitration regulations that provide this figure, it has been applied with relative frequency.

Czech Republic Small Flag Czech Republic

No such relief is available in the Czech Republic.

Chile Small Flag Chile

No. An emergency arbitrator may be available only if the applicable arbitration rules state so.

Canada Small Flag Canada

The provincial arbitration statutes, and the federal Commercial Arbitration Code, in Canada do not expressly provide for emergency arbitrator relief. Parties, however, may agree to emergency arbitrator relief through rules of various institutions operating in Canada. Statistics are not available for how frequently this relief is used but courts in Canada are supportive of this relief.

Mexico Small Flag Mexico

Under the provisions of the Commerce Code, the figure of emergency arbitrator does not exist, nevertheless, this figure can be used when the parties agreed to submit the arbitration under the ICC Rules.

Nigeria Small Flag Nigeria

Some arbitral institutions now have provisions in their rules for emergency arbitrators. These include the Lagos Court of Arbitration Rules 2013 (the “LCA Rules”) and the Lagos Chamber of Commerce Arbitration Rules 2016. Under the LCA Rules for instance, 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.

Norway Small Flag Norway

This is not available under the Arbitration Act, and thus it will depend on the arbitration agreement. It is not commonly used in Norway. The parties will have recourse to request interim measures before the ordinary courts even though the dispute itself is subject to arbitration.

Philippines Small Flag Philippines

Emergency arbitrator relief is available in the country. Neither the ADR Act nor the IRR specifically mentions this relief. Nevertheless, it is specifically provided for under the 2015 Rules of the PDRCI. Since this is a recent development, parties have started availing of the remedy only in 2019.

The IBP has recently launched the PICCR. It is envisioned to include emergency arbitrator relief.

Saudi Arabia Small Flag Saudi Arabia

Emergency arbitrator relief, i.e., interim relief, is available under Saudi law, but the burden of proof is high and necessitates a showing that monetary compensation will not suffice and the party will be irreparably harmed due to the passage of time. As such, this type of relief is infrequently used or granted.

The SCCA does offer emergency arbitrator procedures that allow any party to seek emergency relief that cannot await the constitution of the tribunal. The request for such relief should be justified, and the request should contain a statement of the emergency relief sought, and the reasons why the applicant needs urgent interim measures that cannot await the constitution of the tribunal. The order or award shall be made no later than 14 days from the date on which the file was transmitted to the Emergency Arbitrator. Emergency measures are enforceable and the order or award is binding on parties from the date it is rendered, and parties undertake to carry out the interim order or award immediately and without delay.

Taiwan Small Flag Taiwan

No such system exists.

Switzerland Small Flag Switzerland

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 only3% of all cases submitted in the year 2015 representing emergency relief procedures.

Greece Small Flag Greece

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.

Turkey Small Flag Turkey

Neither IAL nor CCP has specific provisions regarding the use of emergency arbitrators. There is no publicly available data with respect to the number of requests handled by emergency arbitrators where allowed by institutional rules.

Updated: November 6, 2019