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Alternative Dispute Resolution | Monday, March 30, 2015 | S3

fees. Under the ICDR, ICC and SIAC Rules, the by request of the parties. Interim relief was cable to the contract itself.8 This view has consensus” with respect to the requirements:

emergency arbitrator must set a procedural granted in three of the 13 cases. The SCC been endorsed by at least one new York court, a prima facie case; urgency; and irreparable
schedule for the arbitration within two days rules require a decision to be rendered within with the result that an ICDR arbitrator was harm or serious or actual damage in the
of appointment. The time limits for render- five days of transmission of the file to the empowered to order an interim measure that absence of interim relief.12 Similarly, in SIAC
ing an award range from five days (SCC) to emergency arbitrator. The five-day deadline the court itself would not be able to grant.
cases, the tests applied have ranged from a
14 days (LCIA) to 15 days (ICC, HKIAC). The to render a decision has been met in eight of In CE International Resources Holdings v. “real probability” of success to a “good argu-
SIAC, CPR and ICDR Rules do not specify a the 13 cases; extensions in five other cases S.A. Mineral Ltd. Partnership, the court con- able case” test.13
time limit for rendering an award, but require were granted upon request of the arbitrator; sidered whether an ICDR arbitrator had the In one ICDR case the emergency arbitrator
decisions as expeditiously as possible.
and all decisions have been rendered within power to order pre-judgment security and applied a four-part test: a risk of irreparable
All emergency arbitrator procedures call 12 days.
a Mareva-style injunction freezing a party’s harm; good prospects of success on the mer-

for the appointment of a sole emergency arbi- SIAC has received 42 applications. Of those assets during the pendency of the arbitration.9 its, no other remedy would be adequate; and
trator by the institution. (The CPR Rules are 42, at least 11 applications were denied, eight new York law does not permit a plaintiff to any harm from wrongful injunctive relief could
unique in also recognizing the possibility that were granted, and four were withdrawn. no obtain pre-judgment security in an action for be compensated by damages.14 In another,
parties may jointly designate an emergency official data on settlement is available, but money damages, and under well-established the parties agreed that the applicant must
arbitrator.) The institutions appoint either the institution is aware of “quite a few” cases case law neither federal nor state courts are show “irreparable harm absent the requested
from a list of emergency arbitrators or a non- in which the matter settled shortly after an empowered to award Mareva-style freezing relief, a likelihood of success on the merits
list method. The ICC, for example, selects emergency arbitrator’s award or order. At
orders. The court upheld the arbitrator’s
of its claims, and a balance of hardships in
emergency arbitrators following discussion its favor.”15
between the court and the Secretariat regard-
It is too soon to tell whether a consensus
ing the qualities required for each case; a will form as to the legal standard employed
shortlist is drawn up and an arbitrator is cho- by emergency arbitrators in international It is too soon to tell whether a consensus will form as to the legal
sen from among those with availability who arbitration. One way forward—reportedly standard employed by emergency arbitrators in international arbitra-
report no (or de minimus) conflicts. Location used regularly by ICDR emergency arbitra-
is also a factor. In contrast to its normal rule, tors in the absence of party agreement—is tion.
the ICC Emergency Arbitrator Rules allow for to apply the standards set out in the UnCIT-
nationals of the same state as one or more of RAL Model Law on International Commercial
the parties to serve as emergency arbitrator. Arbitration for interim measures issued by SIAC, the average time for the issuance of an award of interim relief on the basis of the

All of the rules require the same standard the duly appointed tribunal.16 The Model interim order is 2.5 days; and the average time arbitral rules chosen by the parties (which
of impartiality and independence for emer- Law test has three elements: (1) likelihood of for an award has been 8.5 days from when allow the tribunal to “take whatever interim
gency arbitrators as for arbitrators in non- irreparable harm (i.e., not reparable by money the adjudicator first hears from the parties.5
measures it deems necessary, including
emergency proceedings; and all provide for damages); (2) harm that substantially out- The ICC has received 15 applications to injunctive relief and measures for the pro-
an expedited challenge procedure.
weighs the harm to the party against whom date, of which at least four were granted, tection or conservation of property”) and
the measure is granted; and (3) a “reason- four were denied, and two were withdrawn or the public policy favoring the enforcement
able possibility” of success on the merits. settled (information is lacking on five cases). of arbitration agreements.10
Emergency Arbitration in Action
Whether such a standard may also be applied At least three cases were terminated by agree-
Information from public sources and from in domestic arbitrations is an open question. ment before the constitution of the arbitral
Varying Legal Standard
direct inquiries of arbitral institutions indi- In practice, it may yield the same results as tribunal and one was terminated shortly after.
cates that emergency arbitration procedures the Second Circuit standard, which requires As of 2014, all emergency orders had been ren- The test to be applied by emergency arbi-
are being used in a reasonable number of either (a) a likelihood of success on the mer- dered within the 15 day deadline prescribed trators in determining whether interim relief
cases. And the original premise has, so far, its, or (b) a sufficiently serious question going by the ICC Emergency Arbitrator Rules.6
should be awarded is notably absent from
borne out: Interim relief has been awarded to the merits of the claim to make them fair The HKIAC has received two applications most international arbitration rules. Instead,
or denied within extraordinarily short time ground for litigation.”17
under its emergency arbitrator proceedings, the rules state that emergency arbitrators
frames. What remains unclear, however, is but both were withdrawn prior to a determi- may grant interim relief that is “urgent” (ICC,
whether a consensus is forming (or can form) nation on whether or not to award interim HKIAC), “necessary” (ICDR, SIAC, CPR), or
Are Emergency Decisions Enforceable?
about the legal standards that apply to an relief (one proceeded to a costs award).
“appropriate” (SCC).11 Rules for domestic
emergency arbitrator’s deliberations.
Decisions issued by emergency arbitrators The AAA has received 15 requests for U.S. arbitrations provide more guidance.
Since 2006, the ICDR has registered 49 are, by their nature, interim. The rules of each emergency arbitration under its October 2013 For example, under the AAA’s Commercial
requests for emergency relief. Of those, the arbitral institution are clear that the arbitral rules. A decision was issued by the emergency Rules, the applicant must show that “immedi-
applicant was successful in obtaining full or tribunal, once constituted, may modify, termi- arbitrator in four cases; three cases were ate and irreparable loss or damage shall result
partial emergency measures in almost half of nate or annul the decision of the emergency withdrawn; five settled; six remain pending in the absence of emergency relief and that
the cases (24); the applicant was unsuccessful arbitrator.18 The statistics from the arbitral before a later-constituted tribunal; and one such party is entitled to such relief.” (Rule
in 14 cases. Eight of the 49 cases settled, two institutions and anecdotal evidence suggest resulted in a final award.
38(e).) Similarly, the JAMS Rules provide that
were withdrawn, and one is still pending. At that parties often voluntarily comply with neither the LCIA nor the CPR has received “the Emergency Arbitrator shall determine

the ICDR, the average time for the rendering emergency arbitral awards or orders. But any applications under the new rules effective whether the Party seeking emergency relief
of an emergency decision is 21 days. The flex- in the case of a recalcitrant party, are deci- as of Oct. 1, 2014 and Dec. 1, 2014, respectively.
has shown that immediate and irreparable
ibility afforded by the rules to the arbitrator sions by emergency arbitrators enforceable loss or damage will result in the absence of
in not providing for a deadline by which a in court?
Broad Powers
emergency relief ...” (Rule 2(c)(iv).)
decision has to be rendered allows the arbi- As a general rule, U.S. courts do not have In determining the legal test, emergency
trator to tailor the process to the needs of the power to review interlocutory (non-final) Emergency arbitrators have broad powers arbitrators have been guided by the appli-
the particular case.
decisions by arbitral tribunals. However, U.S. to consider and determine their jurisdiction, cable arbitration law, standards used in
Under its 2007 Rules for non-Administered courts have the power to enforce interim to establish the procedure of the expedited local courts, and international practice. The
Arbitrations, CPR has received five requests awards to support the integrity of the arbi- application, and to order interim relief to urgency of the matter, the requirements of

for the appointment of a Special Arbitrator tral process: “Without the ability to confirm the same extent as could a regular arbitral irreparable harm and a balancing of the harm
(as emergency arbitrators are denoted by such interim awards, parties would be free tribunal under the applicable arbitration among the parties have been widely applied.
the CPR). Two requests were denied, one to disregard them, thus frustrating the effec- agreement.7 Interim measures may include But the identification of the standard to be
request was granted, one request was with- tive and efficient resolution of disputes that orders to maintain the status quo while an applied and the strength of the case on the
drawn, and one resulted in agreed relief. JAMS is the hallmark of arbitration.”19 U.S. courts arbitration proceeds, to protect the arbitral merits that must be presented have not been
has received six applications, only three of have also confirmed interim injunctive awards process, to preserve assets or to preserve uniform among emergency arbitrators.
which went to a decision. One then settled on the basis that they address issues that evidence.
In SCC decisions alone, emergency arbitra-
and two are ongoing.
are separate, distinct and severable from the The law of the contract is not generally tors have referred to the Swedish Arbitra-
At the SCC, 13 emergency arbitrator appli-
resolution of the underlying merits of the dis- seen as controlling on the question of whether tion Act and the Swedish judicial code, and
cations had been registered as of Dec. 31, pute.20 Although these cases have arisen in and which interim measures may be granted. have described the standard as “reasonable
2014, of which two were in the context of the context of interim measures issued by Commentators and emergency arbitrators probability of success on the merits,” “prima
investment treaty claims. All 13 went to a deci- regularly-appointed arbitrators, the same have, to date, preferred the view that interim facie case,” “reasonable possibility,” “serious
sion by the emergency arbitrator. One deci- rationales apply to interim measures issued relief is procedural in nature, and therefore claim,” and “probable cause.” One emergency
sion was rendered in the form of an award,
by emergency arbitrators. » Page S10
not bound by the constraints of the law appli-
arbitrator noted that there was a “universal