Emergency Arbitration in the International Chambers of CommerceBack

 

The provision for the emergency arbitrator is for parties seeking injunctive reliefs mostly to maintain status quo pending the composition of the Arbitral panel.

 

The aim of this article is to briefly elucidate the inclusion of the emergency arbitrator under the International Chambers of Commerce Rules 2012.

 

Injunctive Reliefs

 

Article 29 of the ICC’s Rules of Arbitration (“ICC Art. 29”), including the Emergency Arbitrator Rules found in Appendix V of the ICC Rules provide for parties seeking interim injunctive reliefs.

 

 

Procedure

 

The party seeking this relief must make an application stating the reasons for the emergency relief and must notify all the parties involved.

 

The Application shall be supplied in a number of copies sufficient to provide one copy for each party, plus one for the emergency arbitrator, and one for the Secretariat.

 

The Application shall contain the following information:

  • the name in full, description, address and other contact details of each of the parties;
  • the name in full, address and other contact details of any person(s) representing the applicant;
  • a description of the circumstances giving rise to the Application and of the underlying dispute referred or to be referred to arbitration;
  • a statement of the Emergency Measures sought;
  • the reasons why the applicant needs urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal;
  • any relevant agreements and, in particular, the arbitration agreement;
  • any agreement as to the place of the arbitration, the applicable rules of law or the language of the arbitration;
  • proof of payment of the amount referred to in Article 7(1) of this Appendix; and
  • any Request for Arbitration and any other submissions in connection with the underlying dispute, which have been filed with the Secretariat by any of the parties to the emergency arbitrator proceedings prior to the making of the Application.

 

The application may contain such other documents or information as the applicant considers appropriate or as may contribute to the efficient examination of the application.

 

When this application is made the President of the Court (the “President”) then considers it based on the information contained in the Application, whether the Emergency Arbitrator Provisions apply with especially with reference to Article 29(5) and Article 29(6) of the Rules.

 

Immediately the President approves the commencement of the proceedings and proof of service is received, the administrator of the ICC has two (2) days within which to employ the services of an emergency arbitrator who will hear the application.

 

If approved and commenced, the President can terminate the emergency arbitrator proceedings if a Request for Arbitration has not been received by the Secretariat from the applicant within 10 days of the Secretariat’s receipt of the Application, unless the emergency arbitrator determines that a longer period of time is necessary.

 

When the emergency arbitrator has been appointed, the Secretariat shall so notify the parties and shall transmit the file to the emergency arbitrator.

 

The appointed emergency arbitrator must then quickly establish a schedule for considering the applicant’s submission and in so doing must give all parties a reasonable opportunity to be heard.

 

It is important to note that the party seeking this relief is not required to post a bond or similar security if the prayers are granted.

 

The emergency arbitrator loses all power to act once he grants the order and the arbitral tribunal is constituted. The tribunal is then vested with the power to reconsider, modify, or vacate the “emergency relief” award or order pronounced by the emergency arbitrator. The emergency arbitrator is prohibited from act as an arbitrator in any arbitration relating to the dispute that gave rise to the Application.

 

 

Service

 

The Secretariat shall transmit a copy of the Application and the documents annexed thereto to the responding party and shall also inform all parties of the President’s decision on the Emergency Arbitration Proceedings and shall transmit a copy of the Application to them for information.

 

All subsequent written communications from the parties shall be submitted directly to the emergency arbitrator with a copy to the other party and the Secretariat. A copy of any written communications from the emergency arbitrator to the parties shall be submitted to the Secretariat.

 

 

Venue

 

Wherever the parties have agreed to be the location for the arbitration proceedings will also be used for the emergency arbitration proceedings.

 

 

Duration

 

The emergency arbitration proceedings has a life span of a total of fifteen (15) days from the date the file was transferred to the emergency arbitrator to the day the Order is made. With cogent reasons the emergency arbitrator may apply to the President of the ICC to extend this time limit.

 

 

Abatement of Order

 

The question then becomes how long does an order granted last?

 

An emergency award or order does not automatically expire or require the parties to undergo preliminary injunctive or similar further proceedings in order to keep the emergency relief in place. Rather, the relief stays in place unless and until the full tribunal reconsiders, modifies or vacates the emergency award/ order. The burden on seeking such reconsideration lies on the party opposing the emergency award/order.

 

The rules do not set forth the factors that are to be considered in ruling on an application for “emergency relief”. Thus the emergency arbitrator may look to a variety approaches and weigh different factors when deciding whether to grant the application.

 

The emergency order will cease to be binding all the parties when the arbitral tribunal’s delivers its final award, unless the tribunal expressly decides otherwise; or when the parties withdraw all claims or the termination of the arbitration proceedings before the adaptation of a final award.

 

Finally, it is imperative to note that any emergency order or award that is granted by the emergency arbitrator is not self-enforcing; as with any arbitration award, the emergency order or award may need to be confirmed by a court where enforcement is sought if the other party refuses to comply.

 

Any such application shall be accepted only if it is received by the Secretariat prior to the transmission of the file to the arbitral tribunal pursuant to Article 16 and irrespective of whether the party making the application has already submitted its Request for Arbitration.

 

 

Exceptions

 

It is however not in all situations that a party can adopt the use of the emergency arbitration. Article 29 (6) of the ICC Rules clearly spells out these exceptions which include proceedings which have been concluded before the date on which the Rules came into force, where the parties have agreed to opt out of the Emergency Arbitrator Provisions; or the parties have agreed to another pre-arbitral procedure that provides for the granting of conservatory, interim or similar measures.

 

If a party does not fall into any of these categories then it can initiate the Emergency Arbitrator proceedings.

 

 

Alternative

 

Article 29(7) states that a party may seek urgent interim reliefs from any competent judicial authority as the Emergency Arbitrator Provisions do not estop parties from such.

 

The application to other competent judicial authorities may be done either before or even after applying for the Emergency Arbitrator, but must be done pursuant to the ICC Rules.

 

The Secretariat must be notified of all applications and subsequent orders made such judicial authority.

 

 

Cost implications

 

For the proceedings of the Emergency Arbitration, the applicant is required to pay:

  • US$ 40,000 (Forty Thousand Dollars only), this sum represents-
    • US$ 10,000 for ICC administrative expenses
    • US$ 30,000 for the emergency arbitrator’s fees and expenses.

 

This sum is however subject to the discretion of the President who may at any time during the proceedings increase the emergency arbitrator’s fees or the ICC administrative expenses.

 

The cost for the emergency arbitrator proceedings itself shall be determined by the emergency arbitrator in his Order. He shall fix the costs and decide which of the parties shall bear them or in what proportion they shall be borne by the parties.

 

 

Conclusion

 

It is however imperative to state that the Emergency Arbitration Proceedings is only applicable in instances that do not fall under Article 29 (6) of the ICC Rules 2012.  This provision exempts all agreements entered into before the commencement of the Rules on 1st January 2012.  

 

There is no provision for the Emergency Arbitration Proceedings under the ICC Arbitration Rules 1998.

 

- by Foluso King

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