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Emergency
by district courts under the [Federal Arbitra- decisions of emergency arbitrators will be gency arbitrators (Article 3.6: “References in the Rules to
the “arbitral tribunal” include one or more arbitrators.
tion Act].”25 In this case, this rationale did enforced.
•
Such references do not include an Emergency Arbitrator
not apply: The party seeking review wished •••••••••••••• •••••••••••••• as defined at para. 1 of Schedule 4.”)
« Continued from page S3
to undo an order, not enforce it. The court 1. In 2007, the Institute for Conflict Prevention and 12. Johan Lundstedt, “SCC Practice: Emergency Arbi-
Indeed, the Southern District of new York declined to review the case for vacatur on Resolution (CPR); in 2010, the Arbitration Institute of trator Decisions, 1 January 2010-31 December 2013.”
13. vivekananda n., “The SIAC Emergency Arbitrator
recently confirmed an award issued by an the basis that it was not intended to be final the Stockholm Chamber of Commerce (SCC) and the Experience,” at 3.
emergency arbitrator under the rules of the and thus in essence left the order in place Singapore International Arbitration Centre (SIAC); in 14. Guillaume Lemenez and Paul Quigley, “The ICDR’s
AAA (the parties had “opted in” to the AAA’s and effectively enforced it.26
2011, the Australian Centre for International Commer- cial Arbitration; in 2012, the Court of Arbitration of the Emergency Arbitrator Procedure in Action,” Dispute
1999 Optional Rules for Emergency Measures Although the case law is sparse, parties International Chamber of Commerce (ICC); in 2013, Resolution Journal (August/October 2008) at 5.
15. Order of the Emergency Arbitrator dated July 31,
of Protection). In Yahoo! v. Microsoft,Judge to emergency arbitration proceedings in the the American Arbitration Association “AAA) and the 2013 in Irvine Scientific Sales Company v. Microbix Bio-
21 Hong Kong International Arbitration Centre (HKIAC); systems, 986 F. Supp. 2d 1187 (D. Mont. 2013) (order sub-
Robert P. Patterson considered Yahoo’s United States have good reason to believe in 2014, the London Court of Arbitration (LCIA), the mitted and available on PACER).
motion to vacate an emergency arbitration that the resulting decisions will be enforced.
CPR for its international rules, and JAMS; in 2015, the China International Economic and Trade Arbitration 16. United nations Commission on International
award that had granted an injunction in Commission (CIETAC). However, the move to include Trade Law, Model Law on International Commercial Arbitration (1985), with amendments as adopted in
Microsoft’s favor. After an emergency arbitral Courts or Tribunals?
emergency arbitrator procedures is not universal. The 2006 (UnCITRAL Model Law). See Grant Hanessian,
proceeding that involved witness testimony, vienna International Arbitration Center made a consid- “Emergency Arbitrators” in L. newman & R. Hill, eds.,
briefing, and an oral hearing, the emergency Emergency arbitrator systems appear to ered decision not to offer such procedures as part of their rules, in part because of the view that decisions The Leading Arbitrators’ Guide to International Arbi-
arbitrator issued an order requiring Yahoo be working and provide a useful, and some- issuing from that process would not be enforceable as tration (Juris, 2014).
17. Otoe-Missouria Tribe of Indians v. New York State
to continue to perform its obligations under times crucial, alternative, especially in the arbitral awards.
Dept. of Financial Services, 769 F.3d 105, 110 (2d Cir.
the parties’ contract. Having reviewed the international context. But they will not be 2. See The rules of the Kuala Lumpur Regional Centre 2014).
for Arbitration, the Kigali International Arbitration Cen- 18. Many institutions’ rules provide that the decision
parties’ arbitration agreement, the arbitral appropriate in all cases. In order to address tre, and the Lagos Court of Arbitration.
3. Andrea Carlevaris and José Ricardo Feris, “Running of the emergency arbitrator may take the form of either an order or an award. Under the ICC Rules, however, the
rules and applicable law, the court denied the that concern, all of the rules surveyed main- in the ICC Emergency Arbitrator Rules: The First Ten emergency arbitrator is limited to issuing an order; the
motion to vacate and confirmed the award, tain the possibility of applications to national Cases,” ICC International Court of Arbitration Bulletin, decision will not undergo scrutiny by the ICC Court of
even though due to the nature of the case the courts concurrently with the invocation of vol. 25, no. 1 (2014).
Arbitration.
order was tantamount to final relief, noting emergency arbitrator proceedings.
4. In the domestic U.S. context, the JAMS Rules in- corporating emergency arbitrator procedures appear 19. Companion Property and Casualty Insurance Com-
that “if an arbitral award of equitable relief national courts will be the preferred venue to apply to arbitrations “filed and served after July 1, pany v. Allied Provident Insurance, Case no. 13-cv-7865, 2014 WL 4804466 at *3 (S.D.n.Y. Sept. 26, 2014) (and
based upon a finding of irreparable harm is when relief is required ex parte. With few 2014”—implying that they are not limited to arbitration cases cited therein)
to have any meaning at all, the parties must exceptions, the emergency arbitrator rules agreements entered into after that date. (Rule 2(c)). The 20. Publicis Communications v. True North Communi-
JAMS international rules, last updated in 2011, do not cations, 206 F.3d 725 (7th Cir. 2000).
be capable of enforcing or vacating it at the surveyed do not allow for emergency relief provide for emergency arbitration, but an update is ex- pected shortly that will likely include such a provision.
21. 983 F. Supp. 2d 310 (S.D.n.Y. 2013).
22. Id., citing Southern Seas Nav. v. Petroleos Mexica-
time it is made.”22
on an ex parte basis: notice is required to 5. vivekananda n., “The SIAC Emergency Arbitrator nos, 606 F. Supp. 692, 694 (S.D.n.Y. 1985).
Other U.S. cases have supported the orders the responding party.27 While the rationale Experience,” available at www.siag.org.sg, at 4.
23. Draeger Safety Diagnostics v. New Horizon In-
of the emergency arbitrator.23 Indeed, one for this policy is clear—fairness and enforce- 6. Carlevaris and Feris, ICC Emergency Arbitrator, su- terlock, 2011 WL 653651 (E.D. Mich. Feb. 11, 2011); see
court issued a temporary restraining order ability concerns—the lack of an ex parte route pra note 3.
also Blue Cross Blue Shield of Michigan v. Medimpact Healthcare Systems
to preserve the status quo but stayed the may obviate the utility of emergency arbitra- 7. ICDR Rules, Article 6(4); SIAC Rules, Schedule I, 6; ICC Rules, Appendix v, Article 6(3); LCIA Rules, Article , 2010 WL 2595340 (E.D. Mich. June 24, 2010).
action pending arbitration expressly leaving tor proceedings, such as when the initiation 9A, 9.8; CPR Rules, Rule 14.9. The jurisdiction of emer- 24. Pre-Paid Legal Services v. Kidd, 2011 WL 5079538
it to an emergency arbitrator to resolve what of proceedings is itself expected to trigger gency arbitrators may be more limited than that of the (E.D. Okla. Oct. 26, 2011).
interim measure was appropriate.a dissipation of assets. In addition, where arbitral tribunal. For example, the ICC rules explicitly 25. Chinmax Medical Systems, Inc. v. Alere San Diego,
24
limit the application of emergency proceedings to the signatories to the arbitration agreement (or their suc- 2011 WL 2135350 (S.D. Ca. May 27, 2011) (internal cita- tion omitted).
The one known case in which a U.S. court emergency relief requires a third party to cessors).
26. In a similar vein, in 2003 the Paris Court of Appeal
declined to review a decision of an emergency be bound (such as a bank), national courts 8. Emergency arbitrators remain subject to manda- declined to review an award granted by a Referee under
arbitrator, it did so in support of the arbitral will be the venue of choice.
tory procedural laws of the seat that apply to the issu- the ICC’s Pre-Arbitral Referee procedures. The losing
process. In that case, the losing party went Emergency arbitration has, in the last 10 ance of interim relief by arbitrators. For example, several party there sought to annul decisions of the Referee. The Paris court found that the Referee was not acting as
to court to seek to vacate a decision of an years, become a standard feature of inter- jurisdictions appear to limit or eliminate the powers of arbitrators to issue injunctive relief (Quebec; Italy).
an “arbitrator” and that therefore his decisions did not
emergency arbitrator. The court noted that national arbitration. It offers key advan- 9. CE International Resources Holdings v. S.A. Mineral qualify as arbitration awards, meaning that they could
under its circuit law, “temporary equitable tages—a neutral forum; a swift decision; Ltd. Partnership, 2012 WL 6178236 176158 (S.D.n.Y. Dec. not be subject to set-aside proceedings. Judgment of
orders calculated to preserve assets or per- increased confidentiality—and the limited 10, 2012). (This was not an emergency arbitrator case.)
April 29, 2003, Docket no. 2002 / 05147, Court of Appeal
10. Id.
11. The HKIAC Rules Article 23(3) and 23(4) set out of Paris, First Chamber, §C.
27. Under Article 26(3) of the Swiss Rules of Interna-
formance needed to make a potential final data available shows that some parties are the type of temporary measure and the relevant factors tional Arbitration, arbitral tribunals have the power, in
award meaningful ... are final orders that can using this new tool. Jurisprudence from U.S. to be considered. However, Article 23 applies only to de- “exceptional circumstances,” to grant interim relief ex
be reviewed for confirmation and enforcement
courts also shows reason for optimism that
cisions by the “arbitral tribunal,” which excludes emer-
parte.

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