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S2 | Monday, March 30, 2015 | Alternative Dispute Resolution | nylj.com

Evaluating the Advantages

And Drawbacks of Emergency Arbitrators

the American Arbitration
By Edna SuSSman
Association (AAA) made
and alExandra doSman
an opt-in emergency arbi-
Ctrator process available
ommercial parties with its Optional Rules for
choose to resolve Emergency Measures of Pro-
their disputes by tection. In 1990, the Court
international arbitration of Arbitration of the Inter-
for many reasons, includ- national Chamber of Com-

ing greater confidential- merce (ICC) began offering
ity, a neutral forum, and a similar optional (“opt-in”)
increased control over the mechanism for pre-arbitral
selection of decision-makers. tribunal proceedings, under
Until recently, however, par- its Rules for a Pre-Arbitral
ties were required to go to Referee Procedure. The
national courts to request ICC Pre-Arbitral Referee
interim measures of protec- Procedures (which are still

tion—such as security, asset available) have not proved
freezes, or orders for the pro- popular, with only 14 cases
tection of evidence—before in their first 24 years of exis-
the constitution of an arbitral tence.3
tribunal.
In contrast to these pre-
In response to a perceived
cursor mechanisms, the
need for a mechanism for
modern wave of emergency
awarding interim relief
arbitrator rules apply by
within the arbitral system
default—they are “opt out”

itself (rather than national
rather than “opt in.” Almost
courts), in 2006 the Inter-
all of the emergency arbitra-
national Center for Dispute
tor rules apply prospective-
Resolution (ICDR) incorpo-
ly, to arbitration agreements
rated emergency arbitrator
entered into after the rele- OCK
proceedings into its rules.
vant rules came into force. GST
In the following nine years,
One exception is the SCC, BI
almost every major interna-
which elected to make the
tional arbitration institution
emergency arbitrator provi-
has followed suit.1 Emergency arbitrator pro- relief in international arbitration? Are emer- likely to be enforced. Given these factors, in sions applicable to all SCC arbitrations com-
visions are now the norm, including for new gency arbitrators being used, and are their certain circumstances the use of emergency menced after Jan. 1, 2010, regardless of when
entrants in the field.2 Were these amendments decisions enforceable?
mechanisms within the arbitral system will the arbitration agreement was signed.4
a response to a genuine need for emergency
A review of information from the arbitral be preferable to going to a national court for The most obvious characteristic of emer-
institutions reveals that parties are, in fact, interim relief.
gency arbitrator proceedings is the speed at
using emergency arbitrator mechanisms, and which they are to be established and com-
that decisions of emergency arbitrators are pleted. The rules surveyed provide for the
Edna SuSSman is the principal of SussmanADR and generally rendered within very short time A Trend That Has Become the Norm
appointment of an arbitrator by the institu-
the distinguished ADR practitioner in residence at
Fordham University School of Law. alExandra frames. The case law from U.S. courts—includ- The recent proliferation of emergency tion within one day (ICDR, SCC, SIAC, CPR),
doSman is the executive director of the New York ing the high-profile Yahoo! v. Microsoft—indi- arbitrator mechanisms has its roots in two days (ICC, HKIAC), or three days (LCIA)
International Arbitration Center.
cates decisions by emergency arbitrators are
innovations dating back some time. In 1999,
of receipt of the application and payment of

Inside
Alternative Dispute Resolution

S
S4 Take a Realistic Approach S6 Second Circuit Makes It Easier S8 Arbitrator Challenges: S
To Settlement Strategy To Avoid FINRA Arbitration
Balancing Flexibility,
And Mediation
Confidentiality and Efficiency kris Fischer, Editor-In-Chief
By chad B. hoLTZMan,
By Mark E. SEgaLL
rUTh E. harLoW
By JaSon goTTLIEB
angela Turturro, Sections Editor
and BrIan a. BErkLEy
and MIchaEL MIx
rafal Pytel, Design
S

S

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