Emergency Procedures and Interim Measures
Many jurisdictions recognize that parties to arbitral proceedings may need to seek interim measures of protection in order to safeguard their rights pending final resolution of the dispute.
Historically, the power to grant interim measures in international arbitration was solely reserved to national courts. Today, many countries have modified their national arbitration laws to expressly recognise that courts and arbitrators possess concurrent jurisdiction to grant these types of measures.1 Additionally, many arbitral institutions have also revised their rules to expressly give arbitrators power to grant interim measures. Both national laws and arbitration rules generally give broad powers to arbitrators to grant any measure that they consider necessary and/or appropriate.
In 2012 the ICC Arbitration Rules introduced the role of the emergency arbitrator, providing that“a party that needs urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal” may file an application under the Emergency Arbitration Rules set forth in Appendix V (Article 29). Furthermore, Article 28(1) of the ICC Rules provides that “unless the parties have otherwise agreed … the arbitral tribunal may, at the request of a party, order any interim or conservatory measure it deems appropriate”.
The ICSID Arbitration Rules provides that “at any time after the institution of the proceeding, a party may request that provisional measures for the preservation of its rights be recommended by the Tribunal” (Article 39). Similarly, the UNCITRAL Arbitration Rules provides that “the arbitral tribunal may, at the request of a party, grant interim measures” (Article 26).
Article 25 of the Arbitration Rules of the London Court of International Arbitration (LCIA) provides that the arbitral tribunal is empowered to order appropriate interim measures. Article 6 of the Arbitration Rules of the International Center for Dispute Resolution (ICDR) provides that a party may apply for emergency relief before the constitution of the arbitral tribunal when urgency reasons exist. Similar provisions are included in the Rules of Arbitration of other primary arbitral institutions such as the Singapore International Arbitration Centre (SIAC), the Hong Kong International Arbitration Centre (HKIAC) and the Stockholm Chamber of Commerce (SCC).
The Arbitration Rules of the Chamber of Arbitration of Milan merely state that “the Arbitral Tribunal may issue all urgent and provisional measures of protection, also of anticipatory nature, that are not barred by mandatory provisions applicable to the proceedings” (Article 22(2)); this practically results in a lack of interim relief if Italian law is applicable to the dispute, as under our domestic procedural rules arbitrators are generally barred from rendering interim and protective measures, unless expressly authorised by specific rules of law.
While only a few sets of arbitration rules (such as the ICC, the ICSID, the ICDR and the SCC Rules) deal with the parties’ need to obtain urgent protective measures before the constitution of the tribunal that will deal with the merits of the dispute, most arbitral institutions merely provide for the tribunal’s power to give interim measures in the course of proceedings, once the tribunal has been formed. This, given the length of time (sometimes months) that the constitution of a tribunal may take, results in the party seeking relief on an urgency basis being forced to seize ordinary courts, therefore frustrating the function of emergency arbitration.
In 2003 the Paris Court of Appeal, ruling on a ICC’s Pre-Arbitral Referee procedure, reasoned that the Pre-Arbitral Referee order was binding only as a matter of contract deriving from the arbitration clause which referred requests for interim measures to the Pre-Arbitral Referee procedure (Societé Nationale del Petroles du Congo v. Total Fina Elf. Congo, 2003). Thus, it appears that in France an order of a Pre-Arbitral Referee is not enforceable as an award, but must be regarded by the court as having the same effects of a contract.
In Australia the Supreme Court of Queensland, called to examine whether an interim award was capable of recognition and enforcement under the New York Convention, came to a negative conclusion on the basis of the interlocutory, rather than final, nature of the decision (Resort Condominiums International Inc. v. Ray Bolwell and Resort Condominiums, 1995).
THE EMERGENCY PROCEDURES AVAILABLE
The LCIA Arbitration Rules presently in force are the LCIA Arbitration Rules 2014, which came into effect on 1 October 2014 (the 2014 Rules). They replaced the LCIA Rules effective 1 January 1998 (the 1998 Rules), although the 1998 Rules continue to apply to arbitrations that were commenced before 1 October 2014, as well as to arbitrations where the parties’ agreement expressly refers to the LCIA Rules 1998 or, for example, to “the LCIA Rules in force as at the date of the agreement” (where that date was before 1 October 2014).
The 2014 Rules, like the 1998 Rules, includes a procedure for the expedited formation of the Arbitral Tribunal or for the expedited appointment of a replacement arbitrator. This process provides for an accelerated appointment of a permanent (rather than a temporary) tribunal, or a replacement arbitrator, in an appropriate case of exceptional urgency. That Arbitral Tribunal may then, of course, consider any application that a party wishes to make as to the conduct of the arbitration or for a particular order or award.
In addition, the 2014 Rules introduce a new Emergency Arbitrator procedure, which is contained in Article 9B of the Rules. Although the 2014 Rules apply to all arbitrations commenced on or after 1 October 2014 (regardless of the date of the arbitration agreement), the Emergency Arbitrator procedure applies only to arbitration agreements concluded on or after 1 October 2014. Parties may, however, opt in or opt out of the Emergency Arbitrator provisions.
The Emergency Arbitrator procedure envisages the appointment of a temporary sole arbitrator to conduct emergency proceedings (to address a claim for emergency relief) pending the formation of the Arbitral Tribunal.
The standard for invoking the two different emergency procedures contained in the Rules is not identical. Once we have received a number of applications under the Emergency Arbitrator procedure, we will be able to provide guidance about how the standard has been applied in practice. In the meantime, we include in this note examples of cases in which applications were brought for the expedited formation of the Arbitral Tribunal under the 1998 Rules, which provide relevant guidance as to the type of grounds that might support a successful application.
Further information about LCIA arbitration and which Rules apply (and, therefore, what emergency procedure might be available) can be found in Notes for Parties, which is available at www.lcia.org.