ICC Arbitration and ADR Commission Report on Emergency Arbitrator Proceedings

The Report is based on an empirical study of the first eighty ICC EA applications and benefited from experiences provided by other arbitral institutions with similar EA mechanisms.  The Report includes a summary table provided by ICC National Committees addressing questions regarding the status of EA proceedings under national laws, such as the enforceability of EA decisions and the availability of specific statutory rules.

Introductory remarks

The Task Force on Emergency Arbitrator (“EA”) Proceedings (the “Task Force”) was set up to study the experience with EA proceedings and to analyse all aspects, including procedural and substantive issues, that may arise in EA proceedings in order to identify and examine any emerging trends.

Over the last decade, EA proceedings have rapidly been adopted by several institutions. ICC adopted its own version – Article 29 and Appendix V (together, the “EA Provisions”) – as part of the 2012 revision of the ICC Arbitration Rules. However, the 2012 revision was not the ICC’s first attempt to address pre-arbitral relief: in 1990, ICC introduced a Pre-Arbitral Referee Procedure still in force today. While the Pre-Arbitral Referee Procedure is one that can be opted into and presumably for that reason was quite rarely applied in practice, following the 2012 revision, the EA Provisions are part of the ICC Rules themselves and apply to arbitration agreements under the Rules concluded after 1 January 2012, unless the parties have affirmatively opted out.

Although the procedure and conditions for obtaining emergency interim relief may vary somewhat between different rules, many institutions seem to have determined that EA proceedings fill a perceived void and satisfy a demand from users. This is borne out by the ICC experience. By 30 April 2018, six years after the EA Provisions were implemented, 80 ICC Applications for Emergency Measures (“Application”) had been filed.

Absent EA Provisions, or agreement on any Pre-Arbitral Referee Procedure, users requiring urgent interim relief had either to turn to state courts with jurisdiction or wait until the arbitral tribunal is constituted. For some forms of urgent interim relief, state courts are the only viable option regardless of the existence of EA Provisions, e.g. where ex parte relief is required and available in state courts or where measures sought concern or affect third parties. However, for other more common types of interim relief the state courts have the inherent downsides of loss of confidentiality and dependency on the local procedural rules that the parties had sought to avoid by selecting arbitration. Absent EA Provisions, the remaining option of awaiting constitution of the tribunal may take too much time in urgent cases and thereby undermine the very utility of seeking emergency relief.

Institutions, such as ICC, which have adopted the EA mechanism to fill this lacuna, now have sufficient practical exposure to EA proceedings to have developed a body of learning on how to increase predictability of EA proceedings, improve the process to best suit users’ needs, protect due process and avoid abuses, stimulate efficiency and facilitate enforcement of – and compliance with – EA Orders. The Task Force Report seeks to contribute to this goal.

The Report is intended to be descriptive rather than prescriptive. The Task Force has sought to collate and analyse practical experience with the ICC EA process, to place such experience in the context of EA proceedings under other rules, and to offer possible solutions to some of the problems identified by the Task Force and ICC Commission members. This Report thus seeks to offer guidance to users, counsel and EAs and to facilitate the use of EA proceedings through increased transparency and predictability. Such guidance does not however impose any binding obligations on EAs.

Summary of key conclusions

The Task Force analysis of the first 80 ICC EA cases and 45 National Reports reveals that there is no universal approach to EA proceedings. This variety is apparent with respect to threshold issues, procedural matters, substantive standards and post-emergency arbitration considerations, and is first and foremost the consequence of the choice made in the ICC Rules to leave to the EA a considerable degree of discretion and flexibility. Acknowledging this advantage, the Report intends to contribute to the predictability of EA proceedings while leaving the EA’s flexibility intact.

A key finding based on the cases analysed in this Report is that relief has been granted only in a minority of ICC EA Applications. But this may not, of itself, be surprising: the nature of interim relief is such that it is only in exceptional cases that urgent relief is justified. Indeed, this appears to have been the experience with EA mechanisms under most other arbitral rules. It appears from the analysed cases that EAs are minded to strictly apply particular threshold requirements set by the EA Provisions, such as the key requirement that relief “cannot await the constitution of an arbitral tribunal” (Article 29(1)). Yet, EAs have in multiple cases been persuaded to grant interim relief and the EA Provisions are thus an important addition to the ICC Rules, filling a previously existing void.