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HOW URGENT SHALL AN EMERGENCY BE. THE STANDARDS REQUIRED TO GRANT URGENT RELIEF BY EMERGENCY ARBITRATORS

Authors:

Abstract

In recent years, many arbitration institutions have adopted so-called ‘emergency relief rules’. These rules allow parties to request an ‘emergency arbitrator’ to issue interim measures before the arbitral tribunal is constituted. The author submits that while emergency arbitrators might apply the same substantive requirements that arbitral tribunals apply for granting interim relief, the standard required to meet each substantive requirement shall be different. In addition, the author explores the power of emergency arbitrators to grant urgent relief ex parte and a particular fact scenario where emergency arbitrators will add imminent value to the process of arbitration.
From the SelectedWorks of Edgardo Muñoz
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Yearbook on International
Arbitration
Volume IV
edited
by
Marianne Roth
Michael Geistlinger
with the assistance of
Marianne Stegner
Antwerp · Zurich · Vienna · Graz 2015
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The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie;
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9
Table of contents
Preface ................................................................................................................. 7
List of abbreviations ........................................................................................... 11
I Standards in arbitration .................................................... 17
Margaret L. MOSES
Challenges for the future – the diminishing role of consent in
arbitration .................................................................................................... 19
Susanne HEGER
Arbitration needs control ........................................................................... 29
Edgardo MUÑOZ
How urgent shall an emergency be? – The standards required
to grant urgent relief by emergency arbitrators ...................................... 43
Edna SUSSMAN
Arbitrator decision making – unconscious psychological
influences and what you can do about them ........................................... 69
II Evidence ............................................................................. 97
Courtney LOTFI
Documentary evidence and document production in
international arbitration ............................................................................. 99
Jennifer BRYANT
E-discovery in international arbitration – still a hot topic? .................. 109
III Investment arbitration ..................................................... 119
Claudia REITH
The new UNCITRAL Rules on Transparency 2014 –
significant breakthrough or a regime full of empty formula? .............. 121
Table of contents
10
Maja STANIVUKOVI
Investment arbitration – effects of an arbitral award rendered
in a related contractual dispute ............................................................... 149
Barbara Helene STEINDL
ICSID annulment vs. set aside by state courts – compared
to ICSID ad hoc annulment Committees, is it the state courts
that are now more hesitant to set aside awards? .................................. 181
IV Sports arbitration ............................................................. 207
Julia SCHAFFELHOFER
The 2015 Whereabouts Information System for out-of-competition
testing in the light of the European Convention of Human Rights –
a challenge for the Court of Arbitration for Sport? ............................... 209
V Reviews ............................................................................ 225
Edgardo MUÑOZ
The Swiss International Law School’s LL.M. in International
Commercial Law and Dispute Resolution – a fascinating
journey towards the global lawyer .......................................................... 227
Marianne ROTH/Claudia REITH
Markus Altenkirch, Security for legal costs. A comparison
between the German and English civil procedure and a
proposal for arbitration ............................................................................ 237
Boris LEVTCHEV
Russian Law Journal, Volume II (2014) Issue 2 ..................................... 241
Bibliography ...................................................................................................... 245
Authors ............................................................................................................. 271
Editors .............................................................................................................. 277
43
Edgardo MUÑOZ1
How urgent shall an emergency be? – The
standards required to grant urgent relief by
emergency arbitrators
Table of contents
I Introduction ................................................................................................ 44
II Emergency arbitrators’ power to order emergency relief ........................... 48
III Types of measures that may be issued by emergency arbitrators ............ 50
IV Formal requirements for the application of emergency relief ..................... 55
V Substantive requirements for the granting of emergency relief ................. 56
A Standard Required for Measures Granted by Arbitral Tribunals ................ 57
B Standard Required for Measures Granted by Emergency Arbitrators ....... 59
VI Ex parte Measures by Emergency Arbitrators ........................................... 63
VII Use of Emergency Relief in the Context of International Sales
Contracts ................................................................................................... 65
VIII Conclusion ................................................................................................. 67
Abstract
In recent years, many arbitration institutions have adopted so-called ‘emergency
relief rules’. These rules allow parties to request an ‘emergency arbitrator’ to
issue interim measures before the arbitral tribunal is constituted. The author
submits that while emergency arbitrators might apply the same substantive re-
quirements that arbitral tribunals apply for granting interim relief, the standard
required to meet each substantive requirement shall be different. In addition, the
author explores the power of emergency arbitrators to grant urgent relief ex parte
and a particular fact scenario where emergency arbitrators will add imminent
value to the process of arbitration.
1 Dr. Edgardo Muñoz is Professor of Law at Panamericana University in Guadalajara,
Mexico. The author would like to thank Professor George A. Bermann and Professor
Alejandro Garro both from Columbia University Law School and Dr. Cesar Pereira
(Colombia Law Visiting Scholar 2013-2014) for their comments on the ideas in this
paper which were first presented by the author at the Visiting Scholars Monthly
Forum – Columbia Law School on 9 October 2013.
Edgardo MUÑOZ
44
Keywords
Emergency arbitrator, emergency relief, urgent relief, interim relief, interim
measures, provisional measures, temporary measures, ex parte measures, insti-
tutional arbitration, CISG
I Introduction
Provisional measures granted by arbitrators are a relatively recent chapter in the
law of arbitration. Only some decades ago, arbitrators had no power to grant
provisional measures in many jurisdictions.2 Back then State courts were the
only judicial body empowered to grant provisional measures.3 Parties to arbitra-
tion proceedings had to apply for the aid of State courts when need existed.
Nowadays, however, most national arbitration laws give arbitrators the power to
grant interim measures.4 This is the case in jurisdictions which have adopted the
UNCITRAL Model Law on International Commercial Arbitration (“UNCITRAL
MAL”)5 and in the main international arbitration centres such as England,6
France,7 Germany,8 Switzerland,9 the United States,10 etc. Provisional measures
granted by arbitrators have thus come to be a new chapter in the law of arbitra-
tion, with the exception of some specific countries’ laws.11
2 Ali Yesilirmak, Provisional Measures in International Commercial Arbitration, The
Hague 2005, 42-43; Gary B. Born, International Commercial Arbitration, 2nd ed.,
Alphen aan den Rijn 2014, 2431-32; Jason Fry/Simon Greenberg/Francesca Mazza,
The Secretariat’s Guide to ICC Arbitration, Paris 2012, 288.
3 Ali Yesilirmak, Provisional Measures in International Commercial Arbitration, The
Hague 2005, 42-43.
4 Gary B. Born, International Commercial Arbitration, 2nd ed., Alphen aan den Rijn
2014, 2433; Jean Francois Poudret/Sebastien Besson, Comparative Law of
International Arbitration, 2nd ed., London 2007, 521-22.
5 UNCITRAL MAL contains detailed provisions in Art. 17-17J; Gay B. Born,
International Commercial Arbitration, 2nd ed., Alphen aan den Rijn 2014, 2434-35.
6 Sec. 38 (3), (4) and (6) English Arbitration Act.
7 Art. 1468 and Art. 1506 (3) French Code of Civil Procedure.
8 Art. 1041 German Code of Civil Procedure.
9 Art. 183 Swiss Federal Private International Law Act.
10 Gary B. Born, International Commercial Arbitration, 2nd ed., Alphen aan den Rijn
2014, 2436, FN 61: “In the United States, the text of the FAA is silent on the arbitra-
tors’ powers to order provisional measures. Nonetheless, U.S. courts now recognize
broad authority on the part of arbitral tribunals to grant interim relief, again, absent
contrary agreement.” […] “Toyo Tire Holdings of Ams. Inc. v. Cont’l Tire N. Am.,
Inc., 609 F.3d 975 (9th Cir. 2010); Arrowhead Global Solutions, Inc. v. Datapath,
Inc., 166 F.Appx. 39, 44 (4th Cir. 2006) (‘arbitration panels must have the power to
issue temporary equitable relief in the nature of a preliminary injunction’); Banco de
Seguros del Estado v. Mut. Marine Office, Inc., 344 F.3d 255 (2d Cir. 2003); Island
Creek Coal Sales Co. v. City of Gainesville, 729 F.2d 1046, 1049 (6th Cir. 1984)”.
11 The arbitration law in Italy, Thailand, Argentina and China still give to State courts
the exclusive power to issue interim measure in support of the arbitration proceed-
ings; see Art. 818 Italian Code of Civil Procedure; Art. 68 Chinese Arbitration Law;
Sec. 16 Thai Arbitration Act; Art. 753 Argentine National Code of Civil and Commer-
How urgent shall an emergency be?
45
Despite being a relatively recent chapter in arbitration, thus, less common
than interim measures in the context of civil court proceedings, interim measures
are becoming increasingly important in arbitration practice. According to White &
Case 2012 International Arbitration Survey: Current and Preferred Practices in
the Arbitral Process (“White & Case 2012 Survey”), 77% of participants
answered that they had experience with interim measures ordered by arbitral
tribunals in one quarter of their arbitrations.12 In addition, 89% of the participants
answered that they had experience with interim measures ordered by State
courts in aid of arbitration proceedings in one quarter of their arbitrations.13
The use and importance of interim measures is expected to increase with the
recent adoption of rules on emergency arbitrators (or urgent relief) by major
arbitration institutions. The forerunner of the modern rules on urgent relief is
Article 9 of the London Court of International Arbitration (“LCIA”) Rules of 1998.
This provision envisioned the expedited formation of the arbitral tribunal in cases
of exceptional urgency.14 Article 9 LCIA Rules has since evolved in a 2014 ver-
sion which enables the application to the LCIA Court for the immediate appoint-
ment of an emergency arbitrator prior to the formation or expedited formation of
the arbitral tribunal.15
Article 37 (1) of the International Centre for Dispute Resolution of the Ameri-
can Arbitration Association (“ICDR”) Rules of 2006 was the first of its kind.16
Since their 2006 edition, the ICDR Rules entitle a party to arbitration to request
the appointment of an emergency arbitrator who will hear requests for emergen-
cy relief prior to the formation of the arbitral tribunal.17 The ICDR Rules and its
urgent relief rules were amended in a 2014 version integrating recent develop-
ments in arbitration practice.18 Other institutions have followed up with the adop-
tion of emergency arbitrator rules. The Hong Kong International Arbitration
Centre (“HKIAC”)19 and the Mexico City National Chamber of Commerce
(“CANACO”)20 in 2008. The Singapore International Arbitration Centre (“SIAC”)21
and the Stockholm Chamber of Commerce (“SCC”)22 in 2010. Finally, the Swiss
Chambers’ Arbitration Institution (“SWISS”)23 and the International Chamber of
cial Procedure; Regarding Italy see Ferdinando Emanuele/Milo Molfa, Selected
Issues in International Arbitration: The Italian Perspective, London 2014, 159.
12 White and Case, 2012 International Arbitration Survey: Current and Preferred
Practices in the Arbitral Process, London 2012, 2, available at
http://annualreview2012.whitecase.com/International_Arbitration_Survey_2012.pdf
(20 November 2014).
13 Ibid.
14 Art. 9.1 LCIA Rules 1998; Marie Öhrström, Chapter XII: SCC Rules, in: Rodolf A.
Schütze (ed.), Institutional Arbitration - Article-by-Article Commentary, Munich 2013,
445-46.
15 Art. 9.4 LCIA Rules 2014.
16 Gary B. Born, International Commercial Arbitration, 2nd ed., Alphen aan den Rijn
2014, 2452.
17 Art. 37 (1) ICDR Rules 2006.
18 Art. 6 ICDR Rules 2014.
19 Art 38 HKIAC Rules 2008.
20 Art. 36 and Art. 50 CANACO Rules 2008.
21 Art. 26 (2) and Schedule I SIAC Rules 2010 (updated in 2013).
22 Appendix II SCC Rules 2010.
23 Art. 42 and Art. 43 SWISS Rules 2012.
Edgardo MUÑOZ
46
Commerce (“ICC”) in 2012.24 This article will focus on the LCIA Rules 2014, the
SIAC Rules 2013, the ICC Rules 2012, the SWISS Rules 2012, the SCC Rules
2010 and the HKIAC Rules 2008.
The adoption of the urgent relief rules is an attempt to improve the functioning
and practical benefits of the above institutional rules.25 Under the principle of
concurrent power of arbitral tribunals and State courts (see Part II below), a party
seeking urgent interim measures before the arbitral tribunal was constituted, had
only one choice: to request such measures before State courts. Why? Because it
usually takes the parties or the institution one to five months to constitute an
arbitral tribunal from the filing of the notice of arbitration; in a best case scenario.
Rules on emergency relief were aimed at responding to the parties’ demand
to have the choice to avoid approaching State courts with interim relief requests
before the formation of the arbitral tribunal.26 It has been reported that parties
had in some instances an interest to avoid State courts still before the formation
of arbitral tribunal because of confidentiality issues and rapidity reasons.27 It has
also been pointed out that prior to the constitution of the arbitral tribunal, parties
usually face difficulties in identifying the competent State court of interim
measures;28 in particular where the seat of the arbitration is not yet known. Giv-
ing the parties the choice of having an emergency arbitrator to decide these
requests, solves the problem.
In addition, under most arbitration laws the catalogue of interim relief is bigger
for arbitrators than for State judges (see Part III below).29 Accordingly, emergen-
cy relief is understood to be more suitable to handle some of the modern fact
24 Art. 29 (1) and Appendix V ICC Rules 2012.
25 Andreas Respondek, Five Proposals to Further Increase the Efficiency of
International Arbitration Proceedings, Journal of International Arbitration, 31 (2014)
4, 508, 510; Miguel Oural/Edgardo Muñoz, The 2012 Swiss Rules of International
Arbitration – More Efficiency and Effectiveness of Arbitration Proceedings, Latin
American Journal of International Trade Law, 1 (2013) 1, 452-54; Christian
Aschauer, Use of the Icc Emergency Arbitrator to Protect the Arbitral Proceedings,
ICC International Court of Arbitration Bulletin, 2 (2012) 23, 5; Louise Barrington,
Emergency Arbitrators: Can They Be Useful to the Construction Industry?,
Construction Law International, 7 (2012) 2, 7; Raja Bose/Ian Meredith, Emergency
Arbitration Procedures: A Comparative Analysis, International Arbitration Law
Review (2012) 5, 186; Johan Lundstedt, SCC Practice: Emergency Arbitrator
Decisions, Stockholm 2014, 1, available at http://www.sccinstitute.com/filearchive/
4/46698/SCC%20practice%202010%20-%202013%20emergency%20arbitrator_
FINAL.pdf (20 November 2014).
26 Gary B. Born, International Commercial Arbitration, 2nd ed., Alphen aan den Rijn
2014, 2451; Jason Fry/Simon Greenberg/Francesca Mazza, The Secretariat’s Guide
to ICC Arbitration, Paris 2012, 289, 294.
27 Andrea Carlevaris, Pre-Arbitral Interim Relief: Different Models and the ICC
Experience, at: Interim Relief: What, Why, When, How?, New York 2013, program
available at http://blogs.law.nyu.edu/transnational/wp-content/uploads/2013/09/
Interim-Measures-Brochure-Oct-7-2013.pdf (20 November 2014).
28 Ibid.; Jason Fry/Simon Greenberg/Francesca Mazza, The Secretariat’s Guide to ICC
Arbitration, Paris 2012, 294.
29 Andrea Carlevaris, Pre-Arbitral Interim Relief: Different Models and the ICC
Experience, at: Interim Relief: What, Why, When, How?, New York 2013, program
available at http://blogs.law.nyu.edu/transnational/wp-content/uploads/2013/09/
Interim-Measures-Brochure-Oct-7-2013.pdf (20 November 2014).
How urgent shall an emergency be?
47
scenarios giving rise to requests for interim relief. Volatility of markets is one of
them. In the aftermath of the 2009 economic crisis, a new wave of fear and
speculation invaded players in international markets. The value of goods subject
to a dispute could fluctuate up or down by 100% in a matter of days while a party
was just starting arbitration and no arbitral tribunal was set up. New means of
communication also entail that a party’s conduct may have an immediate and
transnational impact on the other party’s property or business image. Given the
speed at which things can evolve in a contractual relationship, it became vital to
allow an immediate access to a party’s right of protection in arbitration. The rem-
edy of indemnity through damages in a final award does not always fully com-
pensate or compensate at all. In some instances, the constitution of the arbitral
tribunal may take too long to allow it to issue an effective interim measure; irrep-
arable harm may have already been suffered by the applicant.
In addition to a perceived need to have immediate protection against external
harms through emergency relief,30 recent views suggest that anticipation should
be promoted and ensured in arbitration proceedings.31 In particular, when specific
performance of one party’s contractual obligations appears to be the proper
remedy, an order to maintain the status quo should in some instances not wait
until the constitution of the arbitral tribunal not to say until the issuance of the
final award.32 The danger of making an ineffective final award should therefore
be reduced to the extent possible.
Moreover, a need to record evidence alive has also increased in arbitration
practice.33 Emergency arbitrators are meant to improve the arbitration proceed-
ings in this regard (see Part VII below). As the effectiveness of an argument is
basically dependent on the existence of proper evidence, a party may have a
high interest in obtaining an order against the other party to preserve documents
or any type of evidence, even before the arbitral tribunal is formed. Last but not
least, a broader type of disputes is now arbitrable under modern arbitration
laws.34 For instance, antitrust disputes, sports disputes, employment disputes.
Therefore, interim measures are more needed.35 And emergency relief may
make the difference in some fields. Sports disputes are perhaps the best
example whereby a party requests orders to restore the status quo that existed
before the dispute. In most appeals against disciplinary decisions, athletes im-
mediately file a request for interim relief consisting in the lifting of any sanction
30 Massimo Benedettelli, Interim Measures between Party Autonomy and State
Powers, at: Interim Relief: What, Why, When, How?, New York 2013, program avail-
able at http://blogs.law.nyu.edu/transnational/wp-content/uploads/2013/09/Interim-
Measures-Brochure-Oct-7-2013.pdf (20 November 2014).
31 Ibid.
32 Gary B. Born, International Commercial Arbitration, 2nd ed., Alphen aan den Rijn
2014, 2451.
33 Massimo Benedettelli, Interim Measures between Party Autonomy and State
Powers, at: Interim Relief: What, Why, When, How?, New York 2013, program avail-
able at http://blogs.law.nyu.edu/transnational/wp-content/uploads/2013/09/Interim-
Measures-Brochure-Oct-7-2013.pdf (20 November 2014).
34 Dominico Dipietro, Interim Measures in International Arbitration: Practical
Approaches, at: Interim Relief: What, Why, When, How?, New York 2013, program
available at http://blogs.law.nyu.edu/transnational/wp-content/uploads/2013/09/
Interim-Measures-Brochure-Oct-7-2013.pdf (20 November 2014).
35 Ibid.
Edgardo MUÑOZ
48
(mainly suspensions) imposed by the sport federation concerned. Many of these
requests for interim relief are treated by arbitral panels constituted under the
Code of the Court of Arbitration for Sports (“CAS”) which ultimately decide on
their merits.36 But athletes are also entitled to request interim measures before
the arbitration panel is constituted. These requests are decided within days by
the President of the relevant division of the CAS.37
The present article addresses an emergency arbitrator’s power to issue inter-
im measures [II] and the types of measures that an emergency arbitrator may
order [III]. In addition, it analyses the formal [IV] and substantive requirements for
the granting of emergency relief [V]. It discusses some valid concerns with re-
gard to an emergency arbitrator’s power to issue urgent measures ex parte [VI].
It finally explores a particular fact scenario where emergency arbitrators may add
imminent value to the process of arbitration in the context of international sales
disputes [VII].
II Emergency arbitrators’ power to order emergency relief
The jurisdiction of an arbitrator to grant provisional measures is not exclusive as
a matter of law. State judges maintain their jurisdiction to grant interim measures
in aid of arbitration proceedings under most arbitration laws.38 Concurrent juris-
diction and power is said to exist for both arbitrators and State courts with re-
spect to interim measures.39 However, arbitration laws assume that this power is
given to an “arbitral tribunal” duly constituted to decide a dispute in a final award
and able to deal with a request for provisional measures.40 Thus, as a matter of
default rules of law, only the State courts have jurisdiction to issue interim
measures before an arbitral tribunal is constituted.
Therefore, the question is whether under all those arbitration laws, the parties
are free to agree on a procedure for provisional measures to be granted before
arbitrators are appointed and the arbitral tribunal is constituted? The answer is
yes. This possibility shall be understood as part of the parties’ freedom to confer
additional powers to arbitrators in terms of interim measures.41 The parties’ arbi-
36 Rule 37 CAS 2013.
37 Rule 37 CAS 2013.
38 See for example Sec. 44 English Arbitration Act (allows courts to issue preliminary
injunctions in aid of arbitrations; even when the arbitration is seated outside of Eng-
land and Wales); Art. 1425 Mexican Code of Commerce which follows Art. 17
UNCITRAL MAL 1985 (establishing State courtsconcurrent power to issue interim
measures in arbitrations); Ali Yesilirmak, Provisional Measures in International
Commercial Arbitration, The Hague 2005, 66-68.
39 Though, as said before, in some jurisdictions the State courts maintain exclusive
power to issue interim measures e.g. Art. 818 Italian Code of Civil Procedure; Art. 68
Chinese Arbitration Law; Sec. 16 Thai Arbitration Act; Art. 753 Argentine National
Code of Civil and Commercial Procedure.
40 Gary B. Born, International Commercial Arbitration, 2nd ed., Alphen aan den Rijn
2014, 2450-51. This would be inferred from most provisions, see for example
Art. 183 Swiss Federal Private International Law Act and Art. 1433 Mexican Code of
Commerce.
41 It is widely accepted that the parties in an arbitration may expand or restrict the
concurrent power of State courts or arbitral tribunals, cf. Ali Yesilirmak, Provisional
How urgent shall an emergency be?
49
tration agreement may specify that arbitrators will have broader powers than the
general power to grant provisional measures under the provisions of the lex
arbitri. This happens by means of a choice of one of the institutional rules con-
sidered here.42 This choice will enable the appointment of an emergency arbitra-
tor before the constitution of the tribunal.43
This possibility implies one positive novelty: concurrent jurisdiction of arbitra-
tors and State judges has no time restrictions even before a request for arbitra-
tion has been filed. In other words, parties may seek provisional measures from
emergency arbitrators or from a State court, no matter that the arbitral tribunal
has not been constituted. Once the arbitral tribunal is constituted, however,
emergency arbitrators lose their power to hear any request for urgent relief.44
Should a party decide to apply for interim measures to a State judge despite
existing the possibility to file an application for urgent relief, a well settled
principle indicates that such an application will not be incompatible with the arbi-
tration agreement and shall not be regarded as a submission of the substance of
the case to the State courts.45 In addition, the choice of arbitration rules contem-
Measures in International Commercial Arbitration, The Hague 2005, 59: “Arbitrating
parties are free to design the terms of their arbitration agreement as they see fit due
to party autonomy. Consequently, the arbitrating parties are free to exclude or
amend the power of arbitrators to grant provisional measures”.
42 The SWISS Rules 2012 emergency arbitrator provisions will apply to all proceedings
initiated on or after 1 June 2012, unless the parties agree otherwise. See Art. 1 (3)
and Art. 43 (1) SWISS Rules 2012. In contrast, Art. 29 (6) (a) ICC Rules 2012 and
Art. 37 (1) ICDR Rules 2014 provide that emergency proceedings only apply to arbi-
tration agreements entered into after the entry into force of the emergency relief pro-
visions, the Swiss Rules do not provide for such transitional rule. The emergency
procedure is subject to the general rule in Art. 1 (3) SWISS Rules 2012 and there-
fore applies to all arbitration proceedings in which the Notice of Arbitration was sub-
mitted on or after 1 June 2012, unless the parties agree otherwise. See Jason
Fry/Simon Greenberg/Francesca Mazza, The Secretariat’s Guide to ICC Arbitration,
Paris 2012, 295; Philipp Habegger, The Revised Swiss Rules of International
Arbitration – an Overview of the Major Changes, ASA Bulletin, 30 (2012) 2, 295-96.
43 Chester Brown, The Enforcement of Interim Measures Ordered by Tribunals and
Emergency Arbitrators in International Arbitration, in Albert Jan van Den Berg (ed.),
International Arbitration: The Coming of a New Age?, The Hague 2013, 283-84;
Gary B. Born, International Commercial Arbitration, 2nd ed., Alphen aan den Rijn
2014, 253: “Because the 2012 ICC, NAI, SCC, SIAC, Swiss and ICDR Rules do not
require a separate agreement by the parties to this mechanism, they have enjoyed
greater usage than previous efforts (particularly the ICC Pre-Arbitral Referee Rules)
and are likely to continue to grow in popularity.”; Marie Öhrström, Chapter XII: SCC
Rules, in: Rodolf A. Schütze (ed.), Institutional Arbitration – Article-by-Article
Commentary, Munich 2013, 844, 58.
44 Art. 2 (2) of Appendix V ICC Rules 2012; Art. 1 (2) of Appendix II SCC Rules 2010;
Art. 20 of Schedule 4 HKIAC Rules 2008; Art. 9.8 LCIA Rules 2014; Art. 43 (10) (11)
SWISS 2012; Art. 7 of Schedule 1 SIAC Rules 2013.
45 Art. 29 (7) ICC Rules 2012: “Any application for such measures from a competent
judicial authority shall not be deemed to be an infringement or a waiver of the arbitra-
tion agreement.” This principle was first set forth in Art. VI (4) of the European Con-
vention 1961; Jason Fry/Simon Greenberg/Francesca Mazza, The Secretariat’s
Guide to ICC Arbitration, Paris 2012, 293; Marie Öhrström, Chapter XII: SCC Rules,
in: Rodolf A. Schütze (ed.), Institutional Arbitration - Article-by-Article Commentary,
Edgardo MUÑOZ
50
plating the possibility of urgent relief will not be understood, per se, as a re-
striction of the State courts’ power to issue interim measures at any stage
46,
unless the chosen institutional rules expressly restrict this power.47 In fact, many
institutional rules expressly provide for the State courts’ concurrent power.48 On
the other hand, in accordance with the arbitration rules under which urgent relief
is available, the parties may opt out to resort to any emergency arbitrator.49
III Types of measures that may be issued by emergency
arbitrators
The salient feature of interim measures in all arbitration laws is that these do not
have a definitive and final character and their nature is temporary or provisional.50
Munich 2013, 844; René-Alexander Hirth, Chapter IX: SIAC Rules, in: Rodolf A.
Schütze (ed.), Institutional Arbitration - Article-by-Article Commentary, Munich 2013,
655; Jean-Francois Poudret and Sebastien Besson, Comparative Law of
International Arbitration, 2nd ed., London 2007, 525.
46 Art. 29 (7) ICC Rules 2012: “The Emergency Arbitrator Provisions are not intended
to prevent any party from seeking urgent interim or conservatory measures from a
competent judicial authority at any time prior to making an application for such
measures, and in appropriate circumstances even thereafter, pursuant to the Rules”;
Art. 22 of Schedule 4 HKIAC Rules 2008: “The Emergency Arbitrator Procedures are
not intended to prevent any party from seeking urgent interim or conservatory
measures from a competent judicial authority at any time”; Art. 9.12 LCIA Rules
2014: “Article 9B shall not prejudice any party’s right to apply to a state court or other
legal authority for any interim or conservatory measures before the formation of the
Arbitration Tribunal; and it shall not be treated as an alternative to or substitute for
the exercise of such right”. Jean-Francois Poudret and Sebastien Besson,
Comparative Law of International Arbitration, 2nd ed., London 2007, 524-25.
47 Art. R37 (1) CAS Code 2013 contains an express waiver of any requests for interim
relief made before national courts with respect to appeal arbitration proceedings.
This waiver was held to be valid and binding by a decision by a Court of First In-
stance in Zurich (Switzerland) dated 16 August 2005 (Bezirksgericht of Zurich,
Judgment of 16 August 2005, unpublished, para. 6.2,). In addition, Art. 28 (2) ICC
Rules 2012 provides that after the file has been transmitted to the arbitral tribunal the
parties may apply to any competent authority for provisional measures only “in ap-
propriate circumstances”. This has been interpreted as a limitation of the jurisdiction
of the national courts as from the time when the file has been transmitted to the arbitra-
tor. However, the qualification imported by the words “in appropriate circumstances”
may raise more problems than it is intended to solve in practice; Jason Fry/Simon
Greenberg/Francesca Mazza, The Secretariat’s Guide to ICC Arbitration, Paris
2012, 293: suggesting that “appropriate circumstances” take place when “the tribunal
is not in a position to provide suitable relief to the requesting party […] where third
parties are involved, where measures will be effective only if granted ex parte, or
where the court’s enforcement is required”.
48 Art. 28 (2) ICC Rules 2012; Art. 26 UNCITRAL Rules 2010, Art. 26 SWISS Rules
2012; Art. 23.9 HKIAC Rules 2008.
49 See for example Art. 29 and Appendix V ICC Rules 2012; Art. 9.14 LCIA Rules
2014; Art. 43 (1) SWISS Rules 2012; Jason Fry/Simon Greenberg/Francesca
Mazza, The Secretariat’s Guide to ICC Arbitration, Paris 2012, 295;
50 Art. 17 (2) UNCITRAL MAL 2006 defines an interim measure as any temporary
measure by which the arbitral tribunal orders a party something required to protect
How urgent shall an emergency be?
51
They are granted or refused upon a summary examination of the request. They
may be withdrawn by the requesting party, amended or terminated by the arbitral
tribunal during the arbitral proceedings.51 As interim measures are not final, they
are not binding on other courts or arbitral tribunals, unlike a final decision on the
merits. As they are by essence temporary, the decision to grant them is in force
only for a limited period of time, i.e. pending the proceedings, until the final deci-
sion on the merits is made by arbitrators. Although the interim relief may be the
same relief in the final award, the granting of interim relief will be effective, how-
ever, only pending the proceedings.
A decision of the emergency arbitrator has the same provisional nature as a
decision on interim measures made by an arbitral tribunal. The decision can be
modified, suspended or revoked by the emergency arbitrator (or cease to be
binding upon the termination of the emergency proceedings if the applicant has
not filed its Notice of Arbitration under some rules).52 The arbitral tribunal may
maintain, modify or terminate the emergency relief after the file has been trans-
mitted to it.53 If maintained by the subsequently formed arbitral tribunal, interim
measures granted by an emergency arbitrator cease to be binding on the parties
upon the rendering of the final award or the termination of the arbitration pro-
ceedings by such an arbitral tribunal.54
Most arbitration laws and rules do not set forth the type of measures that arbi-
trators may grant, and rightly so.55 Modern arbitration laws and arbitration rules56
tend to give arbitrators ample discretion to order any type of measures they
deem appropriate or necessary in order to enhance the arbitration process and
achieve an effective award.57 Measures may be intended to protect the (proce-
dural or substantive) rights of a party.58 Others may aim at dealing with the rela-
another party’s rights or avoid irreparable harm which may occurre during the course
of the proceedings until a final award, by which the dispute is finally decided, is
issued; Art. 183 Swiss Federal Private International Law Act: “Unless the parties
have otherwise agreed, the arbitral tribunal may, on motion of one party, order provi-
sional or conservatory measures”; Art. 1468 French Code of Civil Procedure: “The
arbitral tribunal may order upon the parties any conservatory or provisional
measures that it deems appropriate, set conditions for such measures and, if neces-
sary, attach penalties to such order”.
51 See in particular Art. 1468 (2) of the French Code of Civil Procedure and Art. 17D
UNCITRAL MAL 2006.
52 Art. 6 (8) of Appendix V ICC Rules 2012; Art. 18 of Schedule 4 HKIAC Rules 2008;
Art. 43 (8) SWISS Rules 2012; Art. 9 (2) of Appendix II SCC Rules 2010.
53 Art. 29 (3) ICC Rules 2012; Art. 23 (5) HKIAC Rules 2008; Art. 9.11 LCIA Rules
2014; Art. 43 (8) SWISS.
54 Art. 9 (4) (ii) of Appendix II SCC Rules 2010; Ar. 6 (6) (c) of Appendix V ICC Rules
2012; Art. 19 (b) of Schedule 4 HKIAC Rules 2008; Art. 43 (10) SWISS Rules 2012.
55 There are nevertheless some exceptions in comparative law like Sect. 38 (3), (4)
and (6) English Arbitration Act and Art. 17 (2) UNCITRAL MAL 2006 which contain a
non-exclusive list of types of interim measures.
56 Art. 28 (1) ICC Rules 2012; Art. 26 SIAC Rules 2012; Art. 24.1 HKIAC Rules 2008;
Art. 32 SCC Rules 2010; Art. 25 LCIA Rules 2014; Jason Fry/Simon Greenberg/
Francesca Mazza, The Secretariat’s Guide to ICC Arbitration, Paris 2012, 289.
57 Gary B. Born, International Commercial Arbitration, 2nd ed., Alphen aan den Rijn
2014, 2464.
58 Art. 17 (2) (a) UNCITRAL MAL 2006.
Edgardo MUÑOZ
52
tionship between the parties pending the arbitral proceedings in order to reduce
or prevent harm to the requesting party or the arbitral process where such reduc-
tion or prevention is required as a matter of urgency.59 Different types of
measures may be issued by arbitrators to achieve different purposes. The cata-
logue of interim relief is certainly bigger in the context of arbitration than in the
context of State courts litigation.60
Emergency arbitrators are entitled to grant any provisional measures that an
arbitral tribunal would also be entitled to grant.61 An emergency arbitrator could
in principle grant a provisional measure which the State courts at the seat would
grant in similar circumstances. However, an emergency arbitrator must not
necessarily follow the types of provisional measures available to the State judge
at the seat. Conversely, emergency arbitrators may be prevented by the law of
the seat from granting certain types of provisional measures which are of the
exclusive competence of State courts at the seat of arbitration.62 For example, an
arbitrator sitting in France has no power to grant interim measures consisting of
an attachment of assets.63
Further restrictions as to the type of measures available to emergency arbitra-
tors could be found in the institutional rules agreed upon by the parties. How-
ever, most institutional rules also provide that an emergency arbitrator may grant
any interim measures he deems appropriate64 or necessary.65 Other institutional
rules like the ICC Rules66 do not expressly set forth what types of interim
measures may be issued by emergency arbitrators. However, it is understood
59 Art. 17 (2) (b) (c) UNCITRAL MAL 2006.
60 Andrea Carlevaris, Pre-Arbitral Interim Relief: Different Models and the ICC
Experience, at: Interim Relief: What, Why, When, How?, New York 2013, program
available at http://blogs.law.nyu.edu/transnational/wp-content/uploads/2013/09/
Interim-Measures-Brochure-Oct-7-2013.pdf (20 November 2014).
61 Thomas Webster/Michael Buhler, Handbook of ICC Arbitration, 3rd ed., London
2014, 448; Art. 29 (1) ICC Rules 2012; Art. 32 (5) SCC 2010 and Art. 1 (2) of Ap-
pendix II SCC Rules 2010; Art. 16 of Schedule 4 HKIAC Rules 2008; Art. 43 (1) (8)
SWISS Rules 2012.
62 SCC Emergency Arbitration 057/2013 in Johan Lundstedt, SCC Practice:
Emergency Arbitrator Decisions, Stockholm 2014, 24, available at
http://www.sccinstitute.com/filearchive/4/46698/SCC%20practice%202010%20-
%202013%20emergency%20arbitrator_FINAL.pdf (20 November 2014): “[…] the
Emergency Arbitrator reviewed the specific relief requested by the Claimant to order
the various interim measures ‘under forfeiture of a penalty’. In this regard the Emer-
gency Arbitrator found that according to Swedish arbitration law (the lex arbitri), arbi-
trators (including the emergency arbitrator) do not have the power to impose any fine
or penalty in the context of an interim decision, and, as a consequence, declared
that the Claimant’s request for the ordering of penalties must be rejected for lack of
jurisdiction”.
63 Art. 1468 (1) French Code of Civil Procedure states that enforcement of an attach-
ment of assets requires resort to execution officers or other public authorities and
thus shall not be ordered by arbitrators. See also Jean-Francois Poudret and
Sebastien Besson, Comparative Law of International Arbitration, 2
nd ed., London
2007, 522-23.: pointing out that freezing orders or Mareva injunctions are also con-
troversial in many jurisdictions.
64 Art. 1 of Appendix II SCC Rules 2010.
65 Art. 23.2 HKIAC Rules 2008; Art. 1 of Schedule 1 SIAC Rules 2014.
66 Art. 29 (2) ICC Rules.
How urgent shall an emergency be?
53
that an emergency arbitrator may make any order or award which the arbitral
tribunal could make under the arbitration agreement67 as it is expressly set forth
in the LCIA Rules68 and the SWISS Rules.69 International practice shows a varie-
ty of provisional measures considered or granted by arbitrators. General types of
measures were recently “codified” in Article 17 (2) of the UNCITRAL MAL (2006)
and Article 26 (2) of the UNCITRAL Rules (2010). These include:70
Orders to preserve the subject matter of the dispute during the proceedings;
Orders to maintain the legal relationship that exists between the parties dur-
ing the proceedings;
Orders to provisionally perform contractual obligations;
Orders to preserve evidence;
Order to deposit security for costs of arbitration proceedings;
Orders to maintain the confidentiality of the proceedings.
In cases reported by SIAC and SCC, emergency arbitrators have considered
the following types of measures. An applicant requested emergency arbitrators
to issue an interim measure in the form of an injunction restraining the respond-
ent from calling a performance bond without any basis.71 Applicants have also
sought urgent relief consisting in orders to restrain the respondent from breach-
ing the confidentiality provisions in their agreement.72 In a dispute over the quali-
ty of a cargo, an applicant (seller) requested an emergency arbitrator to allow it
to sell the cargo with goods which were deteriorating.73 In a different dispute over
67 Thomas Webster/Michael Buhler, Handbook of ICC Arbitration, 3rd ed., London
2014, 448.
68 Art. 9.8 LCIA Rules 2014: excepting arbitration and legal costs under Art. 28.2 and
Art. 28.3 LCIA Rules and, in addition, make any order adjourning the consideration
of all or any part of the claim for emergency relief to the proceedings conducted by
the arbitral tribunal (when formed).
69 Art. 43.1 in conjunction with Art. 26 (1) SWISS 2012: the emergency arbitrator may
grant the same interim measures as an arbitral tribunal under the Rules, i.e. any in-
terim measures he or she deems necessary or appropriate.
70 Jason Fry/Simon Greenberg/Francesca Mazza, The Secretariat’s Guide to ICC
Arbitration, Paris 2012, 289. The list of common types of interim relief mentioned by
the ICC Secretary coincide with the list of measures in Art. 17 (2) of the UNCITRAL
MAL (2006) and Art. 26 (2) of the UNCITRAL Rules (2010); see also Jean Francois
Poudret/Sebastien Besson, Comparative Law of International Arbitration, 2nd ed.,
London 2007, 538.
71 Raja Bose/Ian Meredith, Emergency Arbitration Procedures: A Comparative
Analysis, International Arbitration Law Review (2012) 5, 189; SCC Emergency Arbi-
tration 0139/2010 in Johan Lundstedt, SCC Practice: Emergency Arbitrator
Decisions, Stockholm 2014, 6-8, available at http://www.sccinstitute.com/
filearchive/4/46698/SCC%20practice%202010%20-%202013%20emergency%20
arbitrator_FINAL.pdf (20 November 2014): in a dispute over a building project, the
claimant requested an emergency arbitrator an interim injunction ordering the re-
spondent to refrain from collecting any amount under the bank guarantees supplied
by the claimant.
72 Raja Bose/Ian Meredith, Emergency Arbitration Procedures: A Comparative
Analysis, International Arbitration Law Review (2012) 5, 189.
73 Ibid.: The day after his appointment, the emergency arbitrator permitted the seller to
sell cargo and order the respondent (buyer) to cooperate to permit the cargo to leave
the port. Also reported in René-Alexander Hirth, Chapter IX: SIAC Rules, in: Rodolf
Edgardo MUÑOZ
54
a distribution agreement, an applicant requested an emergency arbitrator to
order the respondent to uphold the agreement pending the proceedings.74
An applicant requested an injunction prohibiting the respondent to alienate,
pledge, charge, sell or otherwise dispose of the shares of a company sold to the
respondent and whose full payment remained outstanding.75 In a dispute arising
out of a shareholders agreement, the claimant requested an emergency arbitra-
tor to order the respondent not to sell, assign, transfer or otherwise dispose any
of its shares in company X (here the claimant was also shareholder).76 Appli-
cants have also requested urgent relief in the form of measures to block moneys
in accounts with banks.77 Others have applied for urgent relief instructing the
other party to move for stay of its claim before State courts and to refrain from
any future actions before State courts pending a final award by the arbitral tribu-
nal to be constituted.78 In a different case, an applicant sought urgent relief con-
sisting in an order to the other party to fulfil its contractual obligations under the
agreement for the purchase of products by immediately delivering some goods
and documents to the applicant.79
Within only few years of the enactment of urgent relief rules, practice has
shown that emergency arbitrators are approached to consider (but with different
eyes) the same type of requests for measures submitted in front of arbitral tribu-
nals. Case law reports state that these can include interim injunctions restraining
a party from acting in breach of a contract, for example, by calling a bank
guarantee80, by selling products in breach of a license agreement81, by removing
goods from a certain location.82 Certain interim measures seek to secure compli-
ance with contractual duties, for example, orders restraining a party from com-
municating confidential information to third parties83 or; requiring a party to pro-
ceed with the manufacture of certain products and strictly to comply with the
technical specifications given by the other84 or interim orders granting an anti-suit
injunction85. Others may seek to obtain the reimburse half of an advance on
A. Schütze (ed.), Institutional Arbitration - Article-by-Article Commentary, Munich
2013, 655.
74 Raja Bose/Ian Meredith, Emergency Arbitration Procedures: A Comparative Analy-
sis, International Arbitration Law Review (2012) 5, 190: The respondent voluntarily
agreed to not terminate the agreement until the arbitral tribunal decided the dispute.
75 SCC Emergency Arbitration 064/2010 in Johan Lundstedt, SCC Practice:
Emergency Arbitrator Decisions, Stockholm 2014, 3-5, available at
http://www.sccinstitute.com/filearchive/4/46698/SCC%20practice%202010%20-
%202013%20emergency%20arbitrator_FINAL.pdf (20 November 2014).
76 SCC Emergency Arbitration 187/2010 in ibid., 10-12.
77 SCC Emergency Arbitration 70/2011 in ibid., 12-15.
78 SCC Emergency Arbitration 91/2011 in ibid., 15,16.
79 SCC Emergency Arbitration 10/2012 in ibid., 16-19.
80 See an ICC tribunal (place of arbitration: Geneva) in Didier De Montmollin, Les
Mesures Provisionnelles Et Conservatoires Dans L’arbitrage, ASA Bulletin, 12
(1994) 1, 160.
81 See an ICC tribunal (place of arbitration: Geneva) in ibid.
82 See an ICC tribunal (place of arbitration: Geneva) in ibid.
83 See an ICC tribunal (place of arbitration: Geneva) in ibid.
84 See an ICC tribunal (place of arbitration: Geneva) in ibid., 142-45.
85 See Icc Case No. 8307 (Place of Arbitration: Geneva) in Emmanuel Gaillard (ed.),
Anti-Suit Injunctions in International Arbitration, Bern, New York 2005, 307-15; See
How urgent shall an emergency be?
55
costs86 or may direct a party to make a provisional payment.87 Orders intended to
preserve certain evidence have included granting a party access to certain
machines.88
IV Formal requirements for the application of emergency
relief
All institutional rules establish strict and special formal requirements for the ap-
plication of emergency relief. These requirements are more or less uniform under
all arbitration rules. Applicants are advised to check the particularities of the
institutional rules concerned. In general, applications for emergency measures
shall include the names and full contact details of the parties, a summary of the
dispute, a statement of the interim relief sought and the reasons therefore.89 In
addition, the application for emergency relief shall be accompanied by a copy or
description of the arbitration agreement on the basis of which the dispute is to be
decided and by proof of payment of the costs for the emergency proceedings.90
In case such is not apparent in the arbitration agreement, some institutional rules
require the applying party to provide comments on the seat of the emergency
proceedings, the applicable law(s) and the language of the proceedings.91 Under
the ICC Rules, the application shall be made in the language of the arbitration if
one was agreed or in the language of the arbitration agreement.92
Moreover, most institutional rules require that the applying party make a
statement explaining the reasons why the applicant needs the emergency relief
on an urgent basis or why it cannot await the constitution of an arbitral tribunal.93
This formal requirement is in direct correlation with the substantive requirement
to prove high urgency in obtaining the interim relief sought (see Part V below).
The application for emergency relief is filed with the administrative body of the
institution concerned (secretariat, institute, general secretary, Court, etc.), which
also the Interim Order made in an ICC arbitration in 2005, quoted by Matthias
Scherer/Werner Jahnel, Anti-Suit and Anti-Arbitration Injunctions in International
Arbitration: A Swiss Perspective, International Arbitration Law Review, 12 (2009) 4, 72.
86 See an ICC Interim Award, ASA Bulletin, 21 (2003) 4, 802-809.
87 See an ad hoc arbitration (place of arbitration: Geneva), ASA Bulletin 157, 12 (1994)
1, 157-159.
88 See ICC Partial Award in Case No. 10040 (place of arbitration: London) in ICC Court
of Arbitration Bulletin, 21 (2000) 1, 118-119.
89 Art. 1 (3) of Appendix V ICC Rules 2012; Art. 2 and Art. 10 (1) (2) of Appendix II
SCC Rules 2010; Art. 2 of Schedule 4 HKIAC Rules 2008; Art. 9.5 LCIA Rules 2014;
Art. 43 (1) (b) (c) SWISS Rules 2012.
90 Art. 1 (3) of Appendix V ICC Rules 2012; Art. 2 and Art. 10 (1) (2) of Appendix II
SCC Rules 2010; Art. 2 of Schedule 4 HKIAC Rules 2008; Art. 9.5 LCIA Rules 2014;
Art. 43 (1) (b) (c) SWISS Rules 2012.
91 Art. 1 (3) of Appendix V ICC Rules 2012; Art. 2 and Art. 10 (1) (2) of Appendix II
SCC Rules 2010; Art. 2 of Schedule 4 HKIAC Rules 2008; Art. 9.5 LCIA Rules 2014;
Art. 43 (1) (b) (c) SWISS Rules 2012.
92 Art. 3 of Appendix V ICC Rules 2012.
93 Art. 1 (3) (e) of Appendix V ICC Rules 2012; Art. 2 (d) of Schedule 4 HKIAC Rules
2008; Art. 1 of Schedule 1 SIAC Rules 2013; Art. 43.1 (e) SWISS.
Edgardo MUÑOZ
56
will appoint an emergency arbitrator and subsequently send him the file in a
matter of hours or days, following receipt of a proper request for urgent relief.94
V Substantive requirements for the granting of
emergency relief
In accordance with the White & Case 2012 Survey, only 35% of all interim
measures applications addressed to the arbitral tribunal are granted.95 This per-
centage of successful applications is rather low. This may be explained by a
natural preference of arbitrators to look at the merits of the case before ordering
any measures affecting one party, unless the circumstances so require. Despite
the fact that statutory provisions on provisional measures do not generally set
out the requirements to be met in order to grant interim relief,96 some institutional
rules and arbitration practice subject the granting of such relief to the same re-
quirements that are broadly applied in court proceedings in most jurisdictions
(although they may be expressed with various formulae)97 – reducing the chances
of success in an application. The requirements generally applied are as follows:
i. Jurisdiction of the arbitrator. The arbitrator must have jurisdiction to adjudi-
cate on the legal right to be protected by the provisional measure sought by
the applicant.
ii. Prima facie case on the merits. The applicant shall be able to demonstrate
likelihood of succeeding on the merits according to evidence (fumus boni juris).
iii. Irreparable harm suffered or likely to be suffered by the applicant. The
applicant has suffered, is suffering or will suffer harm which will not be re-
dressed by an award of damages unless the interim relief sought is granted.
iv. Urgency. The measure sought is required as a matter of urgency to avoid
harm or future harm.98
v. Balance of convenience/proportionality. The balance of convenience
(often referred to as “proportionality” in civil law jurisdictions) is in favour of
the applicant.
94 Art. 1 (5) and 2 (1) of Appendix V ICC Rules 2012; Art. 4, Art. 6, Art. 7, Art. 8 of
Appendix II SCC Rules 2010; Art. 5 and Art. 12 of Schedule 4 HKIAC Rules 2008;
Art. 9.8 LCIA Rules 2014; Art. 43 (2) SWISS.
95 See White and Case, 2012 International Arbitration Survey: Current and Preferred
Practices in the Arbitral Process, London 2012, 17, available at
http://annualreview2012.whitecase.com/International_Arbitration_Survey_2012.pdf
(20 November 2014).
96 With the notable exception of Art. 17A UNCITRAL MAL 2006.
97 Jeff Waincymer, Procedure and Evidence in International Arbitration, The Hague
2012, 626-27; Gary B. Born, International Commercial Arbitration, 2nd ed., Alphen
aan den Rijn 2014, 2467-68; Jason Fry/Simon Greenberg/Francesca Mazza, The
Secretariat’s Guide to ICC Arbitration, Paris 2012, 290.
98 Urgency may be considered a sine qua non requirement for the granting of urgent
relief unless the balance of interest principle applies. Most institutional rules provide
that in considering an application for urgent relief, emergency arbitrators shall take
into account the urgency inherent in such proceedings; see Art. 43 (6) SWISS Rules
2010; Art. 5 (2) of Appendix V ICC Rules 2012; Art. 7 of Appendix II SCC Rules
2010; Art. 11 of Schedule 4 HKIAC Rules 2008.
How urgent shall an emergency be?
57
Unless otherwise agreed or set forth in the lex arbitri, these requirements will
apply solely if, and to the extent, the arbitrator finds them to be applicable as the
expression of general principle of procedure.99 In practice, most arbitrators apply
them and are to be considered by both arbitral tribunals and emergency arbitra-
tors.100 That being said, their application by an emergency arbitrator might be
different to the application of these same requirements by an arbitral tribunal. In
particular, with regard to the standard required to meet each requirement. This
submission is in line with an accepted view that arbitrators shall only apply the
above requirements in a reasonable manner and with the degree of flexibility
required under the circumstances.101
A Standard required for measures granted by arbitral tribunals
Jurisdiction of the arbitrator. In this regard, a prima facie case on jurisdiction
may not always be enough to meet this requirement. A higher standard of show-
ing or “reasonable basis102 for jurisdiction may be required where the arbitral
tribunal has just been constituted and the respondent has raised a challenge to
the general jurisdiction of the arbitral tribunal whose decision on this challenge is
still pending. The standard may be somehow lower in cases where a prima facie
99 Jason Fry/Simon Greenberg/Francesca Mazza, The Secretariat’s Guide to ICC
Arbitration, Paris 2012, 290, 304; SCC Emergency Arbitration 70/2011 in Johan
Lundstedt, SCC Practice: Emergency Arbitrator Decisions, Stockholm 2014, 12-15,
available at http://www.sccinstitute.com/filearchive/4/46698/SCC%20practice%20
2010%20-%202013%20emergency%20arbitrator_FINAL.pdf (20 November 2014):
after recognizing that the Sweden Arbitration Act does not furnish any requirement to
be applied in determining whether interim relief should be granted, the Emergency
Arbitrator agreed with the statement of a prior Tribunal seated in Sweden, holding
that “the requirements under Swedish procedural law for granting interim measures
in essence can be reduced to the two criteria that the petitioner prima facie must
have proved his case and that there must be an urgent need for the requested
interim relief”. The emergency arbitrator held that “this statement reflects the univer-
sal consensus with regard to the requirements that need to be present when grant-
ing interim measures, e.g. prima facie establishment of a case; urgency; and, irrepa-
rable harm, or serious or actual damage if the measure requested is not granted”;
Jean Francois Poudret/Sebastien Besson, Comparative Law of International
Arbitration, 2nd ed., London 2007, 537.
100 Jean Francois Poudret/Sebastien Besson, Comparative Law of International
Arbitration, 2nd ed., London 2007, 536; SCC Emergency Arbitration 10/2012 in Johan
Lundstedt, SCC Practice: Emergency Arbitrator Decisions, Stockholm 2014, 16-19,
available at http://www.sccinstitute.com/filearchive/4/46698/SCC%20practice%20
2010%20-%202013%20emergency%20arbitrator_FINAL.pdf (20 November 2014):
the emergency arbitrator first stated “that the SCC Rules do not expressly set out the
standards to be met by a request for interim measures to an Emergency Arbitrator.
Whilst not fully agreed by the Parties, the Emergency Arbitrator exercised his discre-
tion under Article 32 (1) of the SCC Rules by reference to several factors listed by
the Claimant in its application. The factors considered by the Emergency Arbitrator
included urgency, risk of dissipation, irreparable harm and proportionality”.
101 Gary B. Born, International Commercial Arbitration, 2nd ed., Alphen aan den Rijn
2014, 2468-69.
102 Jason Fry/Simon Greenberg/Francesca Mazza, The Secretariat’s Guide to ICC
Arbitration, Paris 2012, 291.
Edgardo MUÑOZ
58
jurisdiction has been decided by the arbitration institution or a State court and the
respondent has not pursued its challenge in front of the arbitral tribunal or where
the respondent has never raised any challenge to the jurisdiction of the arbitral
tribunal. That being said, the fact that an arbitral tribunal may ultimately lack
jurisdiction over the dispute does not prevent it from properly issuing provisional
measures.103
Prima facie case on the merits. This requirement also demands a reason-
able probability or likelihood that the applicant will succeed on the merits of its
case.104 However, as a matter of fact, the granting of an interim measure entails
assessing the merits and in practice it is difficult that the arbitral tribunal changes
its view once the merits are finally tackled. As a consequence, it requires from
the arbitral tribunal a rather careful thinking and review of evidence available at
that point and pertaining to the merits of the case.105 Whether the applicant has
real chances of success on the merits is a matter which is not governed by the
lex arbitri, but by the rules of law applicable to the merits of the dispute, i.e. the
lex contractus or other relevant law. Where the lex contractus has not been
agreed upon or has not been determined yet (because a decision in this respect
has not been made or the applicable law is in dispute), an arbitrator will be even
more careful in requiring some evidence that under the terms of the contract the
applicant could win the case, since the risk of having an interim measure which
is incompatible with the final relief in an award may otherwise increase.
Irreparable harm suffered or likely to be suffered by the applicant: under
this requirement two elements may be distinguished: One of substantial harm or
risk of harm and, a second of impossibility to repair such harm with a final award.
With regard to the first element, a prima facie showing of substantial injury or
likelihood of risk thereof should be enough to meet the requirement. As regards
the second element, the issue is one of means rather than merits to obtain
enough indemnity in the award. The applicant shall show that the likelihood of
risk of substantial harm or the harm itself would not be repaired with an award on
damages should the application for interim relief be denied by the arbitrator.106
103 Gary B. Born, International Commercial Arbitration, 2nd ed., Alphen aan den Rijn
2014, 2482., pointing out that “arbitral tribunals have not infrequently ordered provi-
sional relief notwithstanding the existence of an unresolved, and therefore possibly
well-founded, jurisdictional challenge”; Jason Fry/Simon Greenberg/Francesca
Mazza, The Secretariat’s Guide to ICC Arbitration, Paris 2012, 291.
104 Jeff Waincymer, Procedure and Evidence in International Arbitration, The Hague
2012, 626-27.
105 Ibid., 627; Jason Fry/Simon Greenberg/Francesca Mazza, The Secretariat’s Guide
to ICC Arbitration, Paris 2012, 290: stating that “the requirement of a prima facie
arguable case on the merits must be treated with more caution in arbitration. In prin-
ciple, the requested measures should not reflect the relief sought on the main case.
However, in practice, cases exist in which both forms of relief are closely related”.
106 Gary B. Born, International Commercial Arbitration, 2nd ed., Alphen aan den Rijn
2014, 2473: “the better view is that the relevant standard does not require mechani-
cal application of particular levels of probability. Rather, tribunals properly adopt a
pragmatic inquiry that subsumes the likelihood of harm, the degree and character of
harm, the balance of hardships and other factors. The issue is not so much whether,
on a balance of probabilities, serious harm will occur but whether the risks of grave
harm are sufficiently substantial to justify any burden that provisional measures
would impose on the respondent”.
How urgent shall an emergency be?
59
Urgency. This requirement is closely linked with the above requirement. In
the context of interim measures requested to an arbitral tribunal, the applicant
shall show that it is not reasonable to wait for a determination in a final award in
light of the evidence of the risk to suffer irreparable harm or increased injury. The
standard is one of reasonableness of taking rapid steps to stop or prevent future
harm.107
Balance of convenience/proportionality. Under this requirement the appli-
cant shall demonstrate that its interest on the measure outweighs the incon-
venience that may be caused to the other party.108 No standard is required other
than a demonstration that after comparing the applicant’s interests with the dis-
advantages for the other party it seems appropriate to grant the requested
measure.109
B Standard required for measures granted by emergency
arbitrators
Jurisdiction of the emergency arbitrator. A prima facie case on jurisdiction
should suffice to meet this requirement in front of an emergency arbitrator.110
The ICC Rules 2014 require the submission of the parties’ (or their successors)
signed arbitration agreement.111 Thus, showing of jurisdiction is straightforward
in such instance. In addition, most arbitral institutions will do a first check on the
standing of the applicant for urgent relief before appointing an emergency arbi-
trator.112 This decreases the burden on the emergency arbitrator to decide on its
own jurisdiction in a matter of hours or days. Situations of prima facie lack of
jurisdiction of emergency arbitrators may include injunctions prohibiting third
107 Ali Yesilirmak, Provisional Measures in International Commercial Arbitration, The
Hague 2005, 179.
108 Ibid., 182.
109 See Court of Arbitration for Sports (CAS) awards: CAS, AEK Athens and SK Slavia
Prague / Union of European Football Associations (UEFA), Award of 20 August
1999, CAS Award 98/200, p. 38-41; CAS, Christian Maicon Henning v. Prudentopo-
lis Esporte Clube & Fédération Internationale de Football Association (FIFA), Order
of 6 January 2005, CAS Award 2004/A/780 SD, p. 1, 7, 8; CAS, AS Roma c.
Fédération Internationale de Football Association (FIFA), ordonnance sur requête
d’effet suspensif du 25 juillet 2005, CAS Award 2005/A/916 ES1, p. 1, 2. To access
these awards please visit the CAS Jurisprudence Database at
http://jurisprudence.tas-cas.org/sites/search/advanced.aspx (25 November 2014).
110 SCC Emergency Arbitration 0139/2010 in Johan Lundstedt, SCC Practice:
Emergency Arbitrator Decisions, Stockholm 2014, 6-8, available at
http://www.sccinstitute.com/filearchive/4/46698/SCC%20practice%202010%20-
%202013%20emergency%20arbitrator_FINAL.pdf (20 November 2014): the emer-
gency arbitrator found that he could only conduct a prima facie assessment on his
jurisdiction and not a detailed one since the arbitral tribunal once constituted must do
such an analysis.
111 Art. 29 (5) ICC Rules 2012.
112 Art. 1 (5) of Appendix V ICC Rules 2012; Art. 4 (2) of Appendix II SCC Rules 2012;
Art. 5 of Schedule 4 HKIAC Rules 2008; Art. 9.6 LCIA Rules 2014; Art. 43 (2) (a) (b)
SWISS Rules 2012; Jason Fry/Simon Greenberg/Francesca Mazza, The
Secretariat’s Guide to ICC Arbitration, Paris 2012, 307-08; Marie Öhrström, Chapter
XII: SCC Rules, in: Rodolf A. Schütze (ed.), Institutional Arbitration – Article-by-
Article Commentary, Munich 2013, 858.
Edgardo MUÑOZ
60
parties such as banks, state organs, companies, etc. from taking certain ac-
tions.113 Applying also a prima facie standard to establish his jurisdiction, an
emergency arbitrator found that the only rational and readily available interpreta-
tion of an arbitration clause stating that all disputes were to be “resolved exclu-
sively by the International Arbitration Court in Stockholm, Sweden” was that the
parties intended that disputes arising under their contract were to be referred to
arbitration according to the SCC Rules and consequently, that he had jurisdiction
to act as the emergency arbitrator.114
Prima facie case on the merits. With respect to an application for urgent re-
lief, the standard of probability or likelihood that the applicant will succeed on the
merits of its case might be, in most cases, intrinsically lower than in an applica-
tion in front of an arbitral tribunal for the following reasons. First, an emergency
arbitrator does not bear any risk of rendering a future final award that may be
bias based on the preliminary assessment on the merits. An emergency arbitra-
tor’s jurisdiction ends up with the constitution of the arbitral tribunal and he or she
will be prevented from acting as an arbitrator in the same dispute under most
institutional rules.115 Second, for efficiency reasons, an emergency arbitrator
cannot perform an in-depth assessment of the merits of the case. Under all insti-
tutional rules an emergency arbitrator shall make a decision on the urgent relief
within days after receiving the case file116 and leave to the arbitral tribunal the
decision to maintain, modify or overturn the emergency arbitrator’s decision.117
Where the applicable rules to the merits have not been agreed upon, an emer-
gency arbitrator should be able to resort to contract terms and general principles
of law and should not be bound to determine the rules of law applicable to the
merits before making a decision on urgent relief (unless the determination of the
applicable law is a straightforward exercise or the issue has already been fully
argued by the parties in their submissions on urgent relief). In emergency pro-
ceeding under the SCC Rules 2010, an emergency arbitrator granted the urgent
113 SCC Emergency Arbitration 064/2010 in Johan Lundstedt, SCC Practice:
Emergency Arbitrator Decisions, Stockholm 2014, 3-5, available at
http://www.sccinstitute.com/filearchive/4/46698/SCC%20practice%202010%20-%20
2013%20emergency%20arbitrator_FINAL.pdf (20 November 2014); stating that
emergency measures are not binding over a third party for instance a financial insti-
tution holding the assets over which the emergency arbitrator had no jurisdiction.
114 SCC Emergency Arbitration 70/2011 in ibid., 12-15.
115 Art. 2 (6) of Appendix V ICC Rules 2012; Art. 4 (4) of Appendix II SCC Rules 2010;
Art. 21 of Schedule 4 HKIAC Rules 2008; Art. 43 (11) SWISS Rules 2012.
116 Art. 6 (4) of Appendix V ICC Rules 2012 (fifteen-day time limit); Art. 8 (1) of Appen-
dix II SCC Rules (five-day time limit); Art. 12 of Schedule 4 HKIAC Rules 2008 (fif-
teen-day time-limit); Art. 9.8 LCIA Rules (fourteen-day time-limit); Art. 43 (7) SWISS
Rules 2012 (fifteen-day time limit). All deadlines are extendable in special circum-
stances. In the cases reviewed in the following articles, emergency arbitrators made
decision within five-days average, cf. Raja Bose/Ian Meredith, Emergency Arbitration
Procedures: A Comparative Analysis, International Arbitration Law Review (2012) 5,
189; Johan Lundstedt, SCC Practice: Emergency Arbitrator Decisions, Stockholm
2014, 2, available at http://www.sccinstitute.com/filearchive/4/46698/SCC%20
practice%202010%20-%202013%20emergency%20arbitrator_FINAL.pdf (20 No-
vember 2014).
117 Jason Fry/Simon Greenberg/Francesca Mazza, The Secretariat’s Guide to ICC
Arbitration, Paris 2012, 306.
How urgent shall an emergency be?
61
relief sought since the applicant had shown probable cause for its case.118 In
particular, the applicant had listed a number of alleged breaches of contract by
the other party and the latter did not file a reply for those allegations, apart from a
general denial of wrongdoing.119
Irreparable harm suffered or likely to be suffered by the applicant. An
applicant for urgent relief shall show with a same degree of evidence as in front
of an arbitral tribunal, the substantial harm or risk of harm likely to be suffered
and the impossibility to repair such harm with a final award. In a case under the
SCC Rules 2010, the applicant requested an injunction prohibiting the respond-
ent to alienate, pledge, charge, sell or otherwise disposed of the shares of a
company sold to the respondent and whose full payment remained outstand-
ing.120 The emergency arbitrator denied this request for urgent relief since the
applicant did not establish that the harm which was to be prevented by the
emergency arbitrator was irreparable or of urgent nature.121 In the case at hand,
the applying party did not establish that any sale or disposal of the shares in
dispute would be too detrimental for the claimant as a creditor of the respondent
in the sense that the proceeds from such sale or disposal could not come to all
creditors’ benefit.122 In a different case, an emergency arbitrator rejected the
request since there was no evidence of irreparable harm which could not be
compensated with an award.123 In particular, the emergency arbitrator pointed
out that given the size and reputation of the respondent’s parent company, an
award in favour of the applicant, even in a substantial amount, would most likely
to be honoured by or successfully enforced against the respondent.124
Urgency. Most institutional rules provide that in considering an application for
urgent relief, emergency arbitrators shall take into account the urgency inherent
in such proceedings.125 The standard of urgency required in order to admit an
urgent interim measure is intrinsically higher in front of an emergency arbitrator.
It regards measures that are so urgent that cannot wait the constitution of the
arbitral tribunal, not to say the making of a final award.126 Therefore, the appli-
cant for urgent relief shall show that it is unwise to wait until the constitution of
the arbitral tribunal to obtain interim relief in light of the evidence of the risk to
suffer irreparable harm or increased injury. The standard is one of high urgency
to take immediate steps to stop or prevent future harm. In a case concerning
special goods to be manufactured by the seller, an emergency arbitrator has
118 SCC Emergency Arbitration 187/2010 Johan Lundstedt, SCC Practice: Emergency
Arbitrator Decisions, Stockholm 2014, 10-12, available at http://www.sccinstitute.
com/filearchive/4/46698/SCC%20practice%202010%20-%202013%20emergency
%20arbitrator_FINAL.pdf (20 November 2014).
119 SCC Emergency Arbitration 187/2010 in ibid.
120 SCC Emergency Arbitration 064/2010 in ibid., 3-5.
121 SCC Emergency Arbitration 064/2010 in ibid.
122 SCC Emergency Arbitration 064/2010 in ibid.
123 SCC Emergency Arbitration 10/2012 in ibid., 16-19.
124 SCC Emergency Arbitration 10/2012 in ibid.
125 Art. 43 (6) SIAC Rules 2012; Art. 5 (2) of Appendix V ICC Rules 2012; Art. 7 of
Appendix II SCC Rules 2010; Art. 11 of Schedule 4 HKIAC Rules 2008.
126 Gary B. Born, International Commercial Arbitration, 2nd ed., Alphen aan den Rijn
2014, 2451; Jason Fry/Simon Greenberg/Francesca Mazza, The Secretariat’s Guide
to ICC Arbitration, Paris 2012, 294.
Edgardo MUÑOZ
62
found that the measure requested, consisting in an order to the seller to deliver
the goods, was urgent in view of the fact that there was no alternative source of
supply available to the applicant (buyer) and its own deadline for delivery under
an agreement with a third party.127
In a different case, an emergency arbitrator has pointed out that the require-
ments of irreparable harm and urgency are frequently interconnected and that
this interconnection particularly applies in situations where there is reason to
assume that the other party is actively undertaking measures to dissipate or
otherwise make assets unavailable for enforcement in case of an adverse
award.128 The emergency arbitrator stated that the applicant, at least on a prima
facie basis, was required to provide a reasonable case that the respondent has
taken specific action to make its assets unavailable to the party seeking relief.129
In an arbitration under the SCC Rules 2010, the emergency arbitrator dis-
missed the claimant’s request since he was not persuaded that such request
was of urgent nature or that there was a risk of suffering irreparable harm.130 The
claimant had requested the emergency arbitrator to make an interim injunction
ordering the respondent to refrain from collecting any amounts under the bank
guarantees that the claimant had provided as collateral of its undertaking to
complete a building project. In particular, the emergency arbitrator found that
even if it were to be proven that the respondent’s decision to call the bank
guarantee was incorrect, there was no urgency under the circumstances since
the claimant, if succeeding on the merits, could later be able to recover damages
in a final award.131
Balance of convenience/proportionality in the context of emergency re-
lief. This doctrine, widely developed in Sports arbitration,
132 should help the
emergency arbitrator to lower the high standard required in order to show urgen-
cy to stop or prevent irreparable harm, in some circumstances. In particular,
where the inconvenience of the applicant in awaiting for the constitution of the
arbitral to request the same measure is greater compared to the inconvenience
of the other party in being called to comply with the emergency arbitrator’s
127 SCC Emergency Arbitration 10/2012 in Johan Lundstedt, SCC Practice: Emergency
Arbitrator Decisions, Stockholm 2014, 16-19, available at http://www.sccinstitute.
com/filearchive/4/46698/SCC%20practice%202010%20-%202013%20emergency
%20arbitrator_FINAL.pdf (20 November 2014).
128 SCC Emergency Arbitration 70/2011 in ibid., 12-15.
129 SCC Emergency Arbitration 70/2011 in ibid.: “While the applicant certainly cannot be
required to provide full proof of such action on the part of the respondent entity and
its lack of any good faith motive, it will still need to provide a probable cause that
such an improper intent is a driver of the particular conduct.”
130 SCC Emergency Arbitration 0139/2010 in ibid., 6-8.
131 SCC Emergency Arbitration 0139/2010 in ibid.
132 See Court of Arbitration for Sports (CAS) awards: CAS, AEK Athens and SK Slavia
Prague / Union of European Football Associations (UEFA), Award of 20 August
1999, CAS Award 98/200, p. 38-41; CAS, Christian Maicon Henning v. Prudentopo-
lis Esporte Clube & Fédération Internationale de Football Association (FIFA), Order
of 6 January 2005, CAS Award 2004/A/780 SD, p. 1, 7, 8; CAS, AS Roma c.
Fédération Internationale de Football Association (FIFA), ordonnance sur requête
d’effet suspensif du 25 juillet 2005, CAS Award 2005/A/916 ES1, p. 1, 2. To access
these awards please visit the CAS Jurisprudence Database at
http://jurisprudence.tas-cas.org/sites/search/advanced.aspx (25 November 2014).
How urgent shall an emergency be?
63
measure. In this regard, the interaction between the emergency arbitrator and
the arbitral tribunal is very important. If the time or other circumstances modifies
the status of convenience considered by the emergency arbitrator, the arbitral
tribunal shall be able to adapt or revoke the emergency measures taking into
account such circumstances. In a dispute arising out of a shareholders agree-
ment submitted to arbitration under the SCC Rules 2010, the emergency arbitra-
tor upheld that the only requirement for granting interim relief was that such was
deemed to be appropriate.133 In the emergency arbitrators view, that entailed
that the applicant should establish a probable cause for its case and that the
measure was necessary to safeguard its substantive rights.134 The emergency
arbitrator found that the respondent’s offer to sell shares to other shareholders in
a prima facie breach of the contract was sufficient proof of a need for emergency
relief to protect the applicant’s position.135
In a different case, an applicant requested an emergency arbitrator to order
the respondent to fulfil its contractual obligations under a sale and purchase
agreement.136 The respondent argued that its potential performance of the
agreement would be illegal under the mandatory laws of country Y and country Z
and that termination of the agreement was legally justified. Looking at the prin-
ciple of proportionality, the emergency arbitrator pointed out the risk that such
order could expose the respondent to civil and criminal liability under the laws of
countries Y and Z and therefore rejected the application for urgent relief.137
VI Ex parte Measures by Emergency Arbitrators
According to the White & Case 2012 Survey, there is no consensus among par-
ticipants as to whether arbitrators should have the power to order interim
measures ex parte. That means based upon the request of one party and without
hearing the other party prior to granting the provisional measure. Just over half of
participants (51%) believe that arbitrators should have such a power, while 43%
believe they should not (6% were unsure).138
The result of this survey may have been different had participants been asked
about whether emergency arbitrators in particular should have such power.
Existence of urgency under the circumstances is often considered by State
courts and arbitral tribunals when ex parte measures are granted;139 a require-
133 SCC Emergency Arbitration 187/2010 in Johan Lundstedt, SCC Practice:
Emergency Arbitrator Decisions, Stockholm 2014, 10-12, available at
http://www.sccinstitute.com/filearchive/4/46698/SCC%20practice%202010%20-
%202013%20emergency%20arbitrator_FINAL.pdf (20 November 2014).
134 SCC Emergency Arbitration 187/2010 in ibid.
135 SCC Emergency Arbitration 187/2010 in ibid.
136 SCC Emergency Arbitration 10/2012 in ibid., 16-19.
137 SCC Emergency Arbitration 10/2012 in ibid.
138 White and Case, 2012 International Arbitration Survey: Current and Preferred
Practices in the Arbitral Process, London 2012, 18-19, available at
http://annualreview2012.whitecase.com/International_Arbitration_Survey_2012.pdf
(20 November 2014).
139 Ali Yesilirmak, Provisional Measures in International Commercial Arbitration, The
Hague 2005, 223.
Edgardo MUÑOZ
64
ment subject to a high standard that shall in anyway be considered for the grant-
ing of urgent relief by emergency arbitrators.140
The issue whether emergency arbitrators have the power to order ex parte
measures can be determined from two perspectives. Ex parte interim measures
could be understood as an additional power conferred to arbitrators by the par-
ties or, alternatively, as a type of measure generally allow under the lex arbitri. In
the first instance, the lex arbitri would not forbid them, but may require the par-
ties’ mutual intent to vest an arbitrator with the power to grant interim or emer-
gency relief ex parte. An arbitrator could be empowered with such faculty by the
choice of some institutional rules. The SWISS Rules contain a provision dealing
with provisional measures requested ex parte.141
From a second perspective, no agreement by the parties would be required un-
der the lex arbitri for an arbitrator be empowered to grant interim or emergency
relief ex parte. Most arbitration laws neither allow nor prohibit arbitrators to grant
provisional measures ex parte.142 In this context, an arbitrator may grant such
measures if deemed appropriate or necessary, i.e. when the urgency and the
circumstances so require; unless the parties have made an exclusion of such
power by choosing a set of arbitration rules prohibiting ex parte applications.143
In the author’s view, emergency arbitrators shall have the power to grant ur-
gent relief ex parte not only in instances where the parties’ agreement confers
them such power, but as a general power to grant any type of measure which is
deemed necessary or appropriate under the circumstances, unless otherwise
established by the lex arbitri or the parties’ agreement.144 The main concern
about ex parte measures is due process, that is to say, the principle that arbitra-
tors should give both parties a fair opportunity to put their cases on whether the
matter is suitable for provisional relief and whether the actual relief sought is
appropriate.145 However, it may be necessary or appropriate for the emergency
arbitrator only to hear one side in cases of urgency or risk that the other side
140 Art. 43 (6) SWISS Rules 2012; Art. 5 (2) of Appendix V ICC Rules 2012; Art. 17 (2)
of Appendix II SCC Rules 2010; Art. 11 of Schedule 4 HKIAC Rules 2008; Art. 9.7
LCIA Rules 2014.
141 Art. 26 (3) SWISS Rules 2012.
142 Notable exceptions are, on the one hand, Article 17C UNCITRAL MAL stating that a
preliminary order may be granted on an ex parte basis by the arbitral tribunal within a
twenty-day time limit and, on the other hand, section 18B Australian International Arbi-
tration Act which expressly prohibits the issuance of ex parte measures by arbitrators.
143 ICC Rules 2102 forbids the granting of ex parte measures, see Jason Fry/Simon
Greenberg/Francesca Mazza, The Secretariat’s Guide to ICC Arbitration, Paris
2012, 291.
144 Arbitration rules expressly require that the emergency arbitrator makes sure that
each party has a reasonable opportunity to be heard on the application: Art. 43 (6)
SWISS Rules 2012; Art. 5 (2) of Appendix V ICC Rules 2012; Art.17 (2) of Appendix
II SCC Rules 2010; Art. 11 of Schedule 4 HKIAC Rules 2008. However, in the au-
thor’s view this may not be constructed as an exclusion of the emergency arbitrator’s
power to issue urgent relief ex parte. Sharing the author’s view regarding the ICC
Rules 2012, see ibid., 298: “Depending on the circumstances, granting the respond-
ing party an opportunity to comment after the initial order has been rendered might
still be considered as reasonable within the meaning of Article 5(2) of Appendix V”.
145 Jeff Waincymer, Procedure and Evidence in International Arbitration, The Hague
2012, 628.
How urgent shall an emergency be?
65
takes steps to frustrate the measure in the meantime.146 As the urgent relief
granted by an emergency arbitrator is neither final nor binding on the arbitral
tribunal subsequently formed, any order granted by an emergency arbitrator ex
parte shall be in line with the principle of due process; so long as the respondent
is given a reasonable chance to seek the lifting of the relevant order within a
reasonably brief period of time after the granting of the emergency relief either in
front of the emergency arbitrator or the arbitral tribunal.147
VII Use of Emergency Relief in the Context of
International Sales Contracts
Since their enactment, various authors have contributed to the dissemination and
understanding of the emergency arbitrator rules and, in particular, have explored
specific situations148 or industries149 where urgent relief is expected to be useful.
In the next paragraphs, the author attempts to contribute to this debate with a
specific case scenario where emergency arbitrators may add imminent value to
the process of arbitration in the context of international sales disputes.
The hypothetical case involves a buyer who refuses to make payment of the
agreed price or who intends to call a bank guarantee provided by the seller on
the basis of an alleged delivery of non-conforming goods under the applicable
law or contract. The buyer has given notice of nonconformity but has not exam-
ined the goods or at least the seller considers that the examination carried out by
the buyer was not proper. The allegations of non-conformity lack any factual
evidence in the seller’s view. In such a case scenario, the seller will have an
interest in having the buyer or a third party examine the goods as soon as
possible and in accordance with a proper examination method. A buyer’s obliga-
tion to examine the goods is set forth in the UN Convention on Contracts for the
International Sale of Goods of 1980 (CISG)150 and many other domestic contract
146 Art. 9.7 LCIA Rules 2014 endorses the possibility to issue ex parte measures stating
that the “Emergency Arbitrator may conduct the emergency proceedings in any
manner determined by the Emergency Arbitrator to be appropriate in the circum-
stances, 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” [emphasis added].
147 Agreeing with this view in spite of the fact that Art. 5 (2) of Appendix V ICC Rules
2012 expressly requires that the emergency arbitrator make sure that each party has
a reasonable opportunity to be heard on the application, see Jason Fry/Simon
Greenberg/Francesca Mazza, The Secretariat’s Guide to ICC Arbitration, Paris
2012, 298: “While no expressly mentioned in the Rules, it is conceivable that the
emergency arbitrator might issue an initial order (e.g. freezing order or an order
otherwise maintaining the status quo) before the responding party has filed its
response. Depending on the circumstances, granting the responding party an oppor-
tunity to comment after the initial order has been rendered might still be considered
as reasonable within the meaning of Article 5 (2) of Appendix V”.
148 Christian Aschauer, Use of the Icc Emergency Arbitrator to Protect the Arbitral
Proceedings, ICC International Court of Arbitration Bulletin, 2 (2012) 23, 5-6.
149 Louise Barrington, Emergency Arbitrators: Can They Be Useful to the Construction
Industry?, Construction Law International, 7 (2012) 2, 39.
150 Art. 38 CISG. This Convention has been signed and ratified by over 80 nations. See
the status of Contracting States at www.uncitral.org.
Edgardo MUÑOZ
66
laws.151 Although the duty to examine the goods is considered under most laws a
non-actionable duty which does not result in liability for damages (because it
rather entails the loss of remedies for the buyer),152 complying with such duty is
in the interest of both parties and in line with the need to promote the observance
of good faith in international trade.153 The obligation to examine the goods, and
to notify any non-conformity discovered after a proper examination, aims at plac-
ing the seller in a position in which it may, if possible, remedy the lack of con-
formity by, for example delivering missing goods or substitute goods, by repair,
or by reducing the buyer’s loss and its own loss in some other way.154 The
buyer’s proper examination of the goods (and notice of any non-conformity
thereof) is also intended to give the seller an opportunity to prepare for any nego-
tiation or dispute with the buyer concerning the lack of conformity and to take the
necessary steps in that regard, for example, by securing evidence.155 Further-
more, the seller may need to prepare a claim against his own supplier.
Should such an international sales contract include an arbitration agreement
under the above rules the seller may file an application for urgent relief to pursue
its objective. The emergency arbitrator could therefore decide whether to grant
urgent relief by means of an injunction ordering the buyer to examine the goods
in dispute. The emergency arbitrator could be asked to order the buyer to
examine, or to have a third party examine, the goods within a period of time fixed
by the emergency arbitrator. The latter may also order examination under a spe-
cific method that he deems appropriate to protect the seller’s interests, i.e. estab-
lishing the scope of goods or samples to be examined, a permission to manipu-
late the goods or perform random tests.
Should the formal requirements be met by the applicant (see Part IV above),
the emergency arbitrator will proceed to determine whether the substantive re-
quirements under the advocated standards are met (see Part V above). With
regard to his or her jurisdiction, the emergency arbitrator will review the prima
facie existence of an arbitration agreement under one of the above institutional
rules. The requirement of showing likelihood of success on the merits is not
really relevant in this case. The emergency arbitrator will not assess the merits,
i.e. whether the goods are conforming or not, rather will order the buyer to com-
ply with a statutory duty to examine the goods, to mitigate damages or to act in
good faith.
In terms of establishing urgency and need to stop or prevent a substantial
harm, the high standard could be met easily if the goods are perishable or sub-
ject to market price fluctuations. In which case, an urgent relief ordering the
151 Ingeborg Schwenzer/Pascal Hachem/Christopher Kee, Global Sales and Contract
Law, London 2011, 428-30; Ingeborg Schwenzer/Christiana Fountoulakis/Mariel
Dimsey, International Sales Law, A Guide to the Cisg, Oxford 2012, 294-96.
152 Ingeborg Schwenzer, Article 74, in Ingeborg Schwenzer (ed.), Schlechtriem &
Schwenzer: Commentary on the UN Convention on the International Sale of Goods,
München 2010, 1003; Ingeborg Schwenzer/Pascal Hachem/Christopher Kee, Global
Sales and Contract Law, London 2011, 440-42.
153 As required under Art. 7 (1) CISG.
154 Ingeborg Schwenzer, Article 38, in Ingeborg Schwenzer (ed.), Schlechtriem &
Schwenzer: Commentary on the UN Convention on the International Sale of Goods,
München 2010, 609.
155 Ibid.
How urgent shall an emergency be?
67
examination of the goods within short a period as is practicable in the circum-
stances should be deemed necessary. Urgency will also be established and
relief will also be appropriate when its purpose is to preserve evidence of the
goods’ quality or condition on the days following their delivery to the buyer.
With regard to the principle of balance of convenience, it seems most likely
than not that the right and interest of the seller of knowing whether the goods
conform to the contract at the relevant time outweighs the costs that the buyer
may incur in complying with an emergency arbitrator’s order to examine the
goods.
VIII Conclusion
The adoption of the urgent relief rules is an attempt to improve the functioning
and practical benefits of institutional arbitration rules. Provisions on emergency
relief are aimed at responding to the parties’ demand to have the choice to avoid
approaching State courts with interim relief requests before the formation of the
arbitral tribunal. These provisions entail that concurrent jurisdiction of arbitrators
and State judges to issue interim measures has no time restrictions any longer.
Parties may seek provisional measures from emergency arbitrators or from a
State court until an arbitral tribunal is constituted.
A decision of the emergency arbitrator has the same provisional nature as a
decision on interim measures made by an arbitral tribunal. Emergency arbitrators
are entitled to grant any provisional measures that an arbitral tribunal would also
be entitled to grant. Within only few years of practice, case law shows that emer-
gency arbitrators are approached to consider (but with different eyes) the same
type of requests for measures submitted in front of arbitral tribunals.
Arbitrators have subjected the granting of provisional measures to the same
substantive requirements that are broadly applied in court proceedings in most
jurisdictions, i.e. jurisdiction, possibility of success on the merits, substantial
harm or risk thereof, urgency and balance of convenience (or proportionality).
These requirements are also considered by emergency arbitrators. However,
their application by an emergency arbitrator might be different to the application
of these same requirements by an arbitral tribunal. In particular, with regard to
the standard required to meet each requirement. For instance, the standard of
probability or likelihood that the applicant will succeed on the merits of its case
might be, in most cases, intrinsically lower in an application for emergency
measures than in an application in front of an arbitral tribunal. In contrast, the
standard of urgency required in order to admit an urgent interim measure is in-
trinsically higher in front of an emergency arbitrator. Lastly, the balance of con-
venience principle, should help the emergency arbitrator to lower the high stand-
ard required in order to show urgency to stop or prevent irreparable harm, in
some circumstances.
Last but not least, emergency arbitrators shall have the power to grant urgent
relief ex parte not only in instances where the parties’ agreement confers them
such power, but as a general power to grant any type of measure which is
deemed necessary or appropriate under the circumstances, unless otherwise
established by the lex arbitri or the parties’ agreement.
ResearchGate has not been able to resolve any citations for this publication.
); stating that emergency measures are not binding over a third party for instance a financial institution holding the assets over which the emergency arbitrator had no jurisdiction. 114 SCC Emergency Arbitration 70/2011 in ibid
Emergency Arbitrator Decisions, Stockholm 2014, 3-5, available at http://www.sccinstitute.com/filearchive/4/46698/SCC%20practice%202010%20-%20 2013%20emergency%20arbitrator_FINAL.pdf (20 November 2014); stating that emergency measures are not binding over a third party for instance a financial institution holding the assets over which the emergency arbitrator had no jurisdiction. 114 SCC Emergency Arbitration 70/2011 in ibid., 12-15.
LCIA Rules (fourteen-day time-limit)
  • Art
Art. 9.8 LCIA Rules (fourteen-day time-limit);
Jason Fry/Simon Greenberg/Francesca Mazza, The Secretariat's Guide to ICC Arbitration
  • Gary B Born
Gary B. Born, International Commercial Arbitration, 2 nd ed., Alphen aan den Rijn 2014, 2451; Jason Fry/Simon Greenberg/Francesca Mazza, The Secretariat's Guide to ICC Arbitration, Paris 2012, 294.
International Arbitration Survey: Current and Preferred Practices in the Arbitral Process
  • Case White
White and Case, 2012 International Arbitration Survey: Current and Preferred Practices in the Arbitral Process, London 2012, 18-19, available at http://annualreview2012.whitecase.com/International_Arbitration_Survey_2012.pdf (20 November 2014).
Provisional Measures in International Commercial Arbitration, The Hague
  • Ali Yesilirmak
Ali Yesilirmak, Provisional Measures in International Commercial Arbitration, The Hague 2005, 223.
Procedure and Evidence in International Arbitration
  • Jeff Waincymer
Jeff Waincymer, Procedure and Evidence in International Arbitration, The Hague 2012, 628.
Use of the Icc Emergency Arbitrator to Protect the Arbitral Proceedings
  • Christian Aschauer
Christian Aschauer, Use of the Icc Emergency Arbitrator to Protect the Arbitral Proceedings, ICC International Court of Arbitration Bulletin, 2 (2012) 23, 5-6.
Emergency Arbitrators: Can They Be Useful to the Construction Industry?
  • Louise Barrington
Louise Barrington, Emergency Arbitrators: Can They Be Useful to the Construction Industry?, Construction Law International, 7 (2012) 2, 39.
SWISS Rules 2012; Art. 5 (2) of Appendix V ICC Rules
Art. 43 (6) SWISS Rules 2012; Art. 5 (2) of Appendix V ICC Rules 2012; Art. 17 (2) of Appendix II SCC Rules 2010; Art. 11 of Schedule 4 HKIAC Rules 2008; Art. 9.7 LCIA Rules 2014.