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More and more international arbitration institutions are providing for emergency arbitration procedures in their rules. Philip Clifford, partner in Latham & Watkin's litigation department and international arbitration practice and member of the Lexis®PSL's Consulting Editorial Board for Arbitration, considers the nature of such procedures as well as their advantages and disadvantages.
An emergency arbitrator is an arbitrator appointed by an arbitral institution on an urgent basis specifically to deal with an application for interim relief which cannot wait for the constitution of the tribunal that is to deal with the substantive dispute between the parties. For example because absent relief assets will be transferred by a party before the tribunal has been appointed. In the absence of an emergency arbitrator procedure, parties wanting urgent interim relief must apply to a relevant national court.
Until recently, prior to the appointment of a tribunal, parties were only able to seek urgent interim relief from a court. However, some parties, having agreed that their disputes must be referred to arbitration, would prefer their application for urgent interim relief would also be dealt with by an arbitrator. Such a preference might arise, for example, for reasons of confidentiality and/or neutrality.
Some arbitration institutions have now included an emergency arbitrator procedure in the latest editions of their rules. As arbitration institutions compete for users this has attracted a great deal of publicity and comment. Institutions whose rules do not yet provide for an emergency arbitrator service are under pressure to follow suit. On the other hand, there is considerable debate about the utility of an emergency arbitrator service as compared to seeking redress from the appropriate court.
These institutions have all made provision for an emergency arbitrator procedure in their arbitration rules. It is likely that, as other institutions update their rules, they will also consider including an emergency arbitrator procedure.
Each set of rules has its own emergency arbitrator procedure but, in general terms the emergency arbitrator is separately from the tribunal that is to resolve the substantive dispute. It is therefore different from procedures (such as those under the London Court of International Arbitration (LCIA) Rules) for the expedited formation of the tribunal which is to resolve the substantive dispute. Once the tribunal that is to resolve the substantive dispute has been appointed, it takes over from the emergency arbitrator and may continue, amend or dismiss any order made by the emergency arbitrator.
There have been a few applications to emergency arbitrators but only a limited number. This is because many parties seeking urgent interim relief prefer to do so before the appropriate national court due to the practical issues discussed below.
Practical issues in using emergency arbitrators include:
Unlike a judge, the emergency arbitrator has no power to impose a sanction equivalent to contempt of court. This can be a major advantage of interim relief from a court. The primary force of an order from an emergency arbitrator is likely to be a party's wish to remain upstanding in the eyes of the tribunal when constituted. An order from an emergency arbitrator is not generally enforceable like an award but, in any event, given the urgency underlying an application to an emergency arbitrator the normal routes for enforcing an award would most likely be too slow to be meaningful in any event.
Unlike a judge, the emergency arbitrator has no power over third parties (such as banks holding funds for a party).
Unlike an English judge, the emergency arbitrator (and administrative services of the institution) must be paid for (the standard ICC fee is US$40,000).
As with a judge, there is no ability for the parties to select the emergency arbitrator in the way that parties can often nominate members of the tribunal to resolve the substantive dispute.
Philip Clifford is the London chair of Latham & Watkin's litigation department and international arbitration practice. He has 20 years' experience in resolving disputes through arbitration, litigation and mediation. He specialises in complex cross border disputes and is a Fellow of the Chartered Institute of Arbitrators and a Solicitor-Advocate. He also sits as an arbitrator.
Interviewed by Yacine von Welczeck.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
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Barry specialises in international arbitration and commercial litigation. He trained and practised at Jones Day before joining Pinsent Masons. At LexisNexis, Barry is Head of Arbitration and Head of the Lexis®PSL Dispute Resolution Group.
In practice, Barry’s work included commercial, aviation and technology arbitrations pursuant to international arbitral rules, involving UK and international clients. He also has a background in general commercial, civil fraud and IT litigation, including experience before the High Court. While in private practice, Barry worked with a broad range of clients from the private and public sectors.
At LexisNexis, when not focused on the strategic development and operational requirements of the Dispute Resolution Group, Barry’s content work focuses on the law and practice of international commercial arbitration and investment treaty arbitration. In addition to his work for Lexis®PSL, Barry contributes to the LexisNexis Dispute Resolution Blog and New Law Journal on litigation and arbitration matters
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