Regardless of the rules in an international arbitration, the arbitral tribunal is often not fully constituted until months after a request for arbitration is filed. So without a tribunal, who addresses a party's claim for an injunction, a pre-judgment attachment, or other interim or conservatory relief? Historically, a party's only option was to seek relief from a national court. The parties still have that option, but today major international arbitral institutions, including ICC, ICDR, LCIA, SIAC, HKIAC, and SCC, also give the parties the right to apply for the appointment of an emergency arbitrator, who can resolve questions of interim or conservatory relief before the arbitral tribunal is in place. This article examines the emergency arbitrator provisions in the ICC, ICDR, LCIA, and SIAC rules as typical examples. Although these provisions are similar, each set has distinct features, and the fees that the institutions charge for emergency arbitrator proceedings vary widely.
1. International Chamber of Commerce (ICC)
(i) Applicability. A party may seek appointment of an emergency arbitrator under Article 29 of the ICC Rules of Arbitration. Article 29 applies to any agreement for ICC arbitration concluded on or after January 1, 2012 unless the parties expressly "opt out" of Article 29. By contrast, Article 29's predecessor, the ICC's Pre-Arbitral Referee Procedure, applies only if the parties "opt in." If the parties have agreed to use the Pre-Arbitral Referee Procedure or another procedure for conservatory, interim, or similar measures, Article 29 does not apply.
(ii) Procedure for appointment. Under Article 29, a party that needs "urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal" may apply to the ICC Secretariat for the appointment of an emergency arbitrator under the procedures in Appendix V of the Rules, as described here: https://iccwbo.org/dispute-resolution-services/arbitration/emergency-arbitrator/. A party may apply before a Request for Arbitration is filed, but the ICC will terminate the emergency arbitrator proceedings if a Request for Arbitration has not been filed within 10 days after the emergency arbitrator application.
Normally within two days after the ICC Secretariat receives the application, the ICC Court's President determines whether Article 29 and related provisions apply and whether the parties to the emergency arbitrator proceedings are either signatories to the arbitration agreement or their successors. If both criteria are met and the file has not been transmitted to the arbitral tribunal under Article 16, the President will appoint an emergency arbitrator. Otherwise, the ICC will terminate the application.
The emergency arbitrator must be impartial and independent of the parties. Any challenge against the emergency arbitrator must be made within three days of when the challenging party receives notice of the appointment or of when that party learned the factual basis for the challenge. The ICC Court resolves challenges.
(iii) Procedure after appointment. Once appointed, the emergency arbitrator establishes a procedural timetable, usually within two days after the ICC Secretariat transmits the file to the emergency arbitrator. The emergency arbitrator conducts the proceedings in the manner that he or she considers appropriate, taking into account the application's nature and urgency. The emergency arbitrator must act fairly and impartially, and ensure that each party has a reasonable opportunity to present its case.
Rather than an award, the emergency arbitrator's decision is in the form of a reasoned, written "order," which (unless the President grants an extension) must be issued no later than 15 days after the file is transmitted to the emergency arbitrator. The order is not subject to the ICC Court's scrutiny process for awards, and the emergency arbitrator transmits the order directly to the parties.
In the order, the emergency arbitrator determines whether the application meets the standard for relief under Article 29(1) of the Rules, as well as whether the emergency arbitrator has jurisdiction to order emergency measures. The emergency arbitrator may make the order subject to any conditions that he or she deems appropriate, including providing security. The order must fix the costs of the emergency arbitrator proceedings, including which parties will bear them and in what proportion. Costs include the ICC's administrative expenses, the emergency arbitrator's fees and expenses, and the reasonable legal and other costs that the parties incur in the emergency arbitrator proceedings.
(iv) Effect of emergency arbitrator's decision. The parties undertake to comply with the order. The order does not bind the arbitral tribunal, and the tribunal may "modify, terminate or annul the order." The tribunal decides any party's requests or claims related to the emergency arbitrator proceedings, including the reallocation of costs and any claims related to compliance or non-compliance with the order.
(v) Fees. The fee for emergency arbitrator proceedings is US$40,000, including the ICC's and the emergency arbitrator's fees. This amount must be paid before ICC will allow the application to go forward. If the proceedings are terminated before the arbitrator's order, the President determines the amount, if any, to be reimbursed. Regardless, the ICC retains US$5,000. The President has discretion to increase the emergency arbitrator's fee in appropriate cases.
2. International Centre for Dispute Resolution (ICDR)
(i) Applicability. Under Article 6 of the 2014 International Dispute Resolution Procedures, a party may request emergency relief at any time before the arbitral tribunal is appointed. The request must be submitted concurrently with or after a Notice of Arbitration.
(ii) Procedure for appointment. To apply, the party seeking emergency relief submits a written notice to the Case Administrator and the other parties with the information described in Article 6(1). Within one business day of this notice, the Administrator appoints an emergency arbitrator.
The emergency arbitrator must be impartial and independent of the parties. Any challenges to the emergency arbitrator's appointment must be made within one business day of the Administrator's notice to the parties of the appointment.
(iii) Procedure after appointment. No later than two business days after appointment, the emergency arbitrator must establish a schedule to hear the application for emergency relief. The schedule must provide a reasonable opportunity to all parties to be heard, and may provide for proceedings by "telephone, video, written submissions, or other suitable means, as alternatives to an in-person hearing."
The emergency arbitrator's decision may be in the form of a reasoned interim award or a reasoned order, and may condition the award or order on the provision of appropriate security. The emergency arbitrator may modify or vacate this award or order. The emergency arbitrator has the power to determine whether he or she has jurisdiction and whether the emergency arbitrator provisions apply. The emergency arbitrator may order or award "any interim or conservancy measures" that he or she deems necessary, including injunctive relief and "measures for the protection or conservation of property." The emergency arbitrator must address costs associated with applications for emergency relief, subject to the arbitral tribunal's power to finally determine allocation of those costs.
(iv) Effect of emergency arbitrator's decision. The emergency arbitrator's interim award or order binds the parties, who undertake to comply without delay. Once the tribunal is constituted, the emergency arbitrator has no further power to act. The tribunal may reconsider, modify, or vacate the interim award or order.
(v) Costs. The emergency arbitrator is compensated for time spent at hourly rates, but the ICDR does not charge additional fees for the emergency arbitrator proceedings.
3. London Court of International Arbitration (LCIA)
(i) Applicability. Under Article 9B of the 2014 LCIA Rules of Arbitration, any party may apply to the LCIA Court, at any time before the arbitral tribunal's formation, for the appointment of "a temporary sole arbitrator to conduct emergency proceedings." Article 9B does not apply if the parties have agreed in writing to "opt out" of Article 9B or if the parties' arbitration agreement was entered into before October 1, 2014 and the parties have not agreed in writing to "opt in" to Article 9B.
(ii) Procedure for appointment. An application for the appointment of an emergency arbitrator is filed with the LCIA Court's Registrar, and should contain the information detailed in Article 9B, Rule 9.5. The LCIA Court determines the application. If the application is granted, the LCIA Court appoints an emergency arbitrator within three days of the Registrar's receipt of the application (or as soon as possible thereafter). The emergency arbitrator must be impartial and independent of the parties.
(iii) Procedure after appointment. The emergency arbitrator may conduct the emergency proceedings in any manner that he or she deems appropriate under the circumstances, "taking account of the nature of such emergency proceedings, the need to afford to each party, if possible, an opportunity to be consulted on the claim for emergency relief (whether or not it avails itself of such opportunity), the claim and reasons for emergency relief and the parties' further submissions (if any)." The emergency arbitrator is not required to hold a hearing, either in person or telephonically, and may decide the claim based on documents only. Unless the LCIA Court grants an extension based on exceptional circumstances or all parties agree to an extension in writing, the emergency arbitrator must decide the claim no later than 14 days after appointment.
The emergency arbitrator may make any order or award that the arbitral tribunal could make, except for allocation of Arbitration and Legal Costs under Articles 28.2 and 28.3, which the arbitral tribunal is responsible for deciding. The emergency arbitrator also may defer all or part of the claim for emergency relief to the arbitral tribunal.
The order or award must be in writing, and must state the reasons on which it is based. The emergency arbitrator transmits the order or award to the Registrar, who transmits it to the parties.
(iv) Effect of emergency arbitrator's decision. The parties undertake to comply with the emergency arbitrator's order or award. Any order or award (other than an order deferring to the arbitral tribunal) may be "confirmed, varied, discharged or revoked, in whole or in part, by order or award made by the Arbitral Tribunal upon application by any party or upon its own initiative."
(v) Fees. Before the LCIA Court will appoint an emergency arbitrator, the applicant must pay a "Special Fee." The "Special Fee," which is published in the LCIA's "Schedule of Arbitration Costs," currently includes a non-refundable application fee of £8,000, plus £20,000 (also non-refundable) for the emergency arbitrator's fees and expenses. The LCIA Court may increase the emergency arbitrator's fee in appropriate circumstances. If the LCIA refuses the emergency arbitrator application, the LCIA will re-allocate the amounts paid for the emergency arbitrator's fees as part of the deposit on costs in the arbitration.
4. Singapore International Arbitration Centre (SIAC)
(i) Applicability. Under Rule 30.2 and Schedule 1 of the 2016 SIAC Arbitration Rules, a party may seek "emergency interim relief" before the arbitral tribunal is constituted. The request may be submitted concurrently with or after the filing of a Notice of Arbitration.
(ii) Procedure for appointment. The requesting party files the application for emergency interim relief with the SIAC Registrar, and sends a copy to all other parties at the same time. The application must include the information required in Schedule 1, Rule 1. The SIAC Court's President determines whether SIAC should accept the application. If the application is accepted, the President will "seek to appoint an Emergency Arbitrator within one day of receipt by the Registrar of such application and payment of the administration fee and deposits."
The emergency arbitrator must be independent and impartial. Any challenge to the emergency arbitrator's appointment must be made within two days of the appointment.
(iii) Procedure after appointment. Within two days after appointment, the emergency arbitrator must establish a schedule to consider the application for emergency interim relief. The schedule must provide a reasonable opportunity for the parties to be heard, but (in lieu of an in-person hearing) may resolve the application based on written submissions only or may order telephonic or videoconference proceedings.
The emergency arbitrator has the same powers as the arbitral tribunal under the SIAC Rules, including the authority to rule on his or her own jurisdiction, without prejudice to the tribunal's determination. The emergency arbitrator has the power to order or award any interim relief that the emergency arbitrator deems necessary, and may condition the order or award on the provision of appropriate security. The emergency arbitrator must give written "summary reasons" for the decision. The emergency arbitrator also may issue preliminary orders pending any hearing, telephone, or video conference, or the parties' written submissions. For good cause, the emergency arbitrator may modify or vacate a preliminary order, interim order, or award.
Within 14 days from the date of his or her appointment, the emergency arbitrator must make the interim order or award unless, in exceptional circumstances, the Registrar extends the time. The Registrar must approve the form of any interim order or award before it issues.
The emergency arbitrator may apportion the costs associated with the application, subject to the tribunal's final apportionment of those costs.
(iv) Effect of emergency arbitrator's decision. The emergency arbitrator's order or award is binding on the parties from the date it is made. The parties undertake to carry out the interim order or award immediately and without delay. The parties also waive their rights to "any form of appeal, review or recourse to any other judicial authority" concerning the award, as long as the waiver can be validly made.
The tribunal may reconsider, modify or vacate any interim order or award, including the emergency arbitrator's determination of jurisdiction. The emergency arbitrator's reasons do not bind the tribunal.
The emergency arbitrator has no power to act after the tribunal is constituted. Any interim order or award automatically ceases to be binding: (a) if the tribunal is not constituted within 90 days of the order or award; (b) when the tribunal makes a final award; or (c) if the claim is withdrawn.
(v) Fees. When submitting its application, the applicant for emergency interim relief must pay a non-refundable administration fee (S$5,350 for Singapore residents and S$5,000 for non-residents), along with a S$30,000 "deposit" for the emergency arbitrator's fees and expenses. The Registrar may require a different deposit. Unless the Registrar determines otherwise, the emergency arbitrator's fees are S$25,000.