The emergence of emergency arbitration

1. The Emergence of Emergency
Arbitration
Gordon Smith
FCIArb, FSIArb, AIAMA, FIEAust, CPEng (Ret)
Barrister & Solicitor
Chartered Arbitrator, Independent Arbitrator

2.  Requirement for Interim Relief
 Development of Emergency Arbitrations
 Alternatives to Emergency Arbitrations
 Emergency Arbitration Procedures
 Enforcement of Emergency Arbitrator’s Awards /
Orders
 Case Study
 Concluding Comments
Overview

3.  Requirement for Interim Relief
 ICC “Rules for a Pre-Arbitral Referee Procedure”
 AAA “Optional Rules for Emergency Measures of
Protection”
 ICC, SIAC, LCIA, ACICA, ICDR, SCC, and HKIAC
Development of Emergency
Arbitrations

4.  Await Constitution of the Arbitral Tribunal
 LCIA Expedited Formation of Arbitral Tribunal
 HKIAC and SIAC Expedited Procedures
 Court Ordered Interim Relief
Alternatives to Emergency
Arbitrations

5.  Timing of the Application
 Requirement for a Notice or Request
 Content of the Application
 The nature of the relief sought
 Why relief required on an emergency basis?
 Why cannot await constitution of arbitral tribunal?
 Ex Parte Basis?
Comparison of Institutional
Emergency Arbitration Rules

6.  Appointment of Emergency Arbitrator
 Timing
 Challenges
 Temporal limit on jurisdiction
 When decisions cease to be binding
 Appointment to arbitral tribunal
Comparison of Institutional
Emergency Arbitration Rules

7.  Emergency Arbitrator Procedure
 Wide discretion
 Seat
 Due process
 Practical procedure
 Emergency Arbitrator Decisions
 Timing of decision
 Content of decision
 Review by institution
 Binding
 Form of decision
Comparison of Institutional
Emergency Arbitration Rules

8.  Treatment of Costs
 Emergency Arbitrator’s Fees / Admin costs
 Parties’ Costs
 Three approaches to costs
 Substantive Requirements for Applications
 Harm not adequately reparable by an award of damages
 Reasonable possibility that applicant will succeed on
merits
Comparison of Institutional
Emergency Arbitration Rules

9. ICC SIAC ICDR SCC
Applications 14 34 49 13
Successful Applications _ 18 24 3
Unsuccessful Applications _ 11 14 10
Settled or Withdrawn _ 3 _ _
Pending _ 2 _ _
Emergency Arbitration Statistics
Arbitral Institutions Statistics on Emergency Arbitrations

10.  Voluntary Compliance
 Contractual Regime
 Adverse Inferences
 Enforcement of Interim Relief under the New York
Convention
 Enforcement of Interim Relief under the Model Law
 1985 Model Law
 2006 Model Law
 Is an emergency arbitrator a fully fledged arbitral tribunal?
Enforcement of Emergency
Arbitrator Decisions

11.  Application to restrain a call on the performance bond
 Day 1 - Application
 Day 2 - Appointment
 Day 3 - Respondent’s Response to Application
 Day 4 - Conference and Procedural Order
 Day 6 - Applicant’s Submissions
 Day 8 - Respondent’s Reply Submissions
 Day 9 - Oral Hearing by Conference Call
 Day 12 - Draft Decision Submitted to SIAC
 Day 13 – Final Decision Issued
Case Study

12.  Emergency Arbitration by Agreement
 Effective Alternative
 To Assess at Relevant Time
Concluding Comments

13. Questions