Emergency Arbitrators Versus the Courts: From Concurrent Jurisdiction to Practical Considerations

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1 Emergency Arbitrators Versus the Courts: From Concurrent Jurisdiction to Practical Considerations Philippe CAVALIEROS * & Janet (Hyun Jeong) KIM * The 10 November 2017 Dublin International Arbitration Day, organized by Arbitration Ireland, had an entire session devoted to the topic Interim Measures: Emergency Arbitrators Versus the Courts. Drawing in part from the various issues discussed at the session, in which Philippe Cavalieros, as one of the first appointed International Chamber of Commerce (ICC) Emergency Arbitrators, participated, this article focuses more specifically on the issue of concurrent jurisdiction to grant emergency relief. Interim or provisional measures in an arbitration context are decisions designed to protect the parties from harm during the course of the proceedings. To be granted interim relief by an emergency arbitrator, parties must generally demonstrate that there is an urgency that cannot await the constitution of the tribunal, risk of irreparable or serious harm, proportionality and a prima facie case on jurisdiction and the merits. 1 Generally, such decisions may be issued in the form of orders or awards, and can range widely in scope, including inter alia orders to preserve evidence, to * Philippe Cavalieros is a partner and Janet (Hyun Jeong) Kim is an associate at Simmons & Simmons LLP (Paris). Philippe.cavalieros@simmons-simmons.com, janet.kim@simmons-simmons.com. The views expressed in this article are strictly those of the authors and should not in any way be attributed to Simmons & Simmons LLP or other members of the firm. 1 Chartered Institute of Arbitrators, International Arbitration Practice Guideline: Applications for Interim Measures 5 6 (2015); M. Grando, The Coming of Age of Interim Relief in International Arbitration: A Report from the 28th Annual ITA Workshop, Kluwer Arbitration Blog (20 July 2016); C. Aschauer, Use of the ICC Emergency Arbitrator to Protect the Arbitral Proceedings, 23(3) ICC Int l Ct. Arb. Bull. (2012). See s. 3.6 infra on the emergency arbitrator decisions in investment treaty cases. The following interim measures decisions in investment treaty cases (made in a non-emergency arbitrator context) also demonstrate the requirements: Sergei Paushok et al. v. Government of Mongolia, UNCITRAL Arbitration Rules, Order on Interim Measures (2 Sept. 2008), para. 45 ( They are (1) prima facie jurisdiction; (2) prima facie establishment of the case; (3) urgency; (4) imminent danger of serious prejudice (necessity); and (5) proportionality. ); Sergei Viktorovich Pugachev v. Russian Federation, UNCITRAL, Interim Award (7 July 2017), para. 212 ( These requirements are: (i) prima facie jurisdiction of the tribunal; (ii) prima facie existence of a right susceptible of protection; (iii) necessity of the measure requested; (iv) urgency of the measure requested; and (v) proportionality of the measure requested. ) Cavalieros, Philippe & Kim, Janet (Hyun Jeong). Emergency Arbitrators Versus the Courts: From Concurrent Jurisdiction to Practical Considerations. Journal of International Arbitration 35, no. 3 (2018): Kluwer Law International BV, The Netherlands

2 276 JOURNAL OF INTERNATIONAL ARBITRATION maintain or restore the status quo pending the dispute, to refrain from aggravating the dispute, or to preserve assets. Historically, a party seeking urgent relief at the outset of the arbitration, prior to the constitution of the arbitral tribunal, only had recourse to national courts. However, with numerous arbitral institutions relatively recently introducing emergency arbitrator provisions in their rules, parties seeking to obtain interim measures may instead choose, or in certain jurisdictions be compelled, to turn to emergency arbitrators. Depending on the circumstances, a party is indeed increasingly afforded an option between emergency arbitrators and state courts. In order to be in a position to make an informed decision, the respective powers of emergency arbitrators and courts to order interim relief must first be understood (section 1). Then, the central issue of enforceability of interim measures rendered by emergency arbitrators ought to be examined (section 2), before assessing other relevant factors (section 3). 1 POWERS OF EMERGENCY ARBITRATORS AND COURTS TO ORDER INTERIM RELIEF In recognition of the fact that a party may require urgent relief that cannot await the constitution of an arbitral tribunal a process which can unfortunately take several months many arbitral institutions have updated their rules to include provisions on emergency arbitrators. Access to an emergency arbitrator, however, is not intended to preclude recourse to national courts for interim relief. 1.1 OVERVIEW OF EMERGENCY ARBITRATOR PROVISIONS IN INSTITUTIONAL ARBITRATION RULES The International Centre for Dispute Resolution (ICDR) of the American Arbitration Association (AAA) was the first to introduce such provisions in 2006, providing for an opt-out mechanism whereby the emergency measures of protection provisions apply to all cases conducted under arbitration agreements entered on or after 1 May The emergency arbitrator has broad powers to issue a decision in the form of an interim award or order granting any interim or conservancy measures the emergency arbitrator deems necessary, including injunctive relief and measures for the protection or conservation of property. 3 While the 2 ICDR International Arbitration Rules, in force in 2006, Art. 37 (in the version in force as of 1 June 2014, see Art. 6). 3 Ibid., Art. 37(5) (in the version in force as of 1 June 2014, see Art. 6(4)).

3 EMERGENCY ARBITRATORS VERSUS THE COURTS 277 ICDR is to appoint an emergency arbitrator within one business day of receipt of the application, and the emergency arbitrator is to establish a schedule for consideration within two business days of appointment, 4 the ICDR Rules do not provide a specific time limit for the emergency arbitrator to render a decision. In 2016, the ICDR reported that it had received seventy emergency arbitrator applications to date, and that the majority of applications were concluded within fourteen days of filing. 5 In 2010, the Stockholm Chamber of Commerce (SCC) and the Singapore International Arbitration Centre (SIAC) followed suit by introducing their own emergency arbitrator provisions. Under the SCC Arbitration Rules, the SCC will first ensure that it does not manifestly lack jurisdiction over the dispute, before seeking to appoint an emergency arbitrator within twenty-four hours of receiving the application to appoint an emergency arbitrator. 6 The emergency arbitrator has the same powers as the arbitral tribunal to grant any interim measures it deems appropriate, 7 and is to render a decision no later than five days after referral of the application, which may be extended upon reasoned request. 8 The SCC reported in June 2017 that of the twenty-seven emergency arbitrator applications that had been made to date, many had met the five-day deadline or issued a decision within eight days. 9 The decision of the emergency arbitrator ceases to be binding if the arbitration is not commenced within thirty days of the decision, if the case is not referred to the arbitral tribunal within ninety days of the decision, or if the tribunal or emergency arbitrator so decide. 10 The SCC emergency arbitrator provisions apply on an opt-out basis, but to the difference of the rules of other arbitral institutions, they apply retroactively to any arbitration agreement referring to the SCC Arbitration Rules, 11 not just those that were entered into on or after 1 January As will be explored below, this 4 Ibid., Art. 37(3), (4) (in the version in force as of 1 June 2014, see Art. 6(2), (3)). 5 J. Brian Johns, ICDR Emergency Arbitrations, The ICDR International Arbitration Reporter 6 (fall 2016). 6 Arbitration Rules of the Arbitration Institute of the SCC, in force as of 1 Jan. 2010, Art. 32(4), Appendix II, Art. 4(1), (2) (in the version in force as of 1 Jan. 2017, see Art. 37(4), Appendix II, Art. 4 (1), (2)). 7 Ibid., Art. 32(1), Appendix II, Art. 1(2) (in the version in force as of 1 Jan. 2017, see Art. 37(1)). 8 Ibid., Art. 32(4), Appendix II (in the version in force as of 1 Jan. 2017, see Appendix II, Art. 8(1)). 9 A. H. Ipp, SCC Practice Note: Emergency Arbitration Decisions Rendered (June 2017). 10 Arbitration Rules of the Arbitration Institute of the SCC, in force as of 1 Jan. 2010, Appendix II, Art. 9(4) (same provision in the version in force as of 1 Jan. 2017). 11 Arbitration Rules of the Arbitration Institute of the SCC, in force as of 1 Jan. 2017, Preamble: Under any arbitration agreement referring to the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (the Arbitration Rules ) the parties shall be deemed to have agreed that the following rules, or such amended rules, in force on the date of the commencement of the arbitration, or the filing of an application for the appointment of an Emergency Arbitrator, shall be applied unless otherwise agreed by the parties.

4 278 JOURNAL OF INTERNATIONAL ARBITRATION provision has elicited some controversy, especially in the realm of investor-state arbitration. 12 The SIAC introduced its emergency arbitrator provisions in July 2010, also on an opt-out basis so that the provisions apply to any arbitration commenced on or after 1 July 2010, in the absence of contrary party agreement. 13 The provisions read similarly to those of the ICDR, providing that the SIAC is to appoint an emergency arbitrator within one business day of receiving the application, and that the emergency arbitrator has two business days to establish a schedule for consideration. 14 The emergency arbitrator may issue any interim relief that he deems necessary in the form of an order or an award, 15 and is to render a decision within fourteen days of appointment. 16 His or her decision ceases to be binding if the tribunal is not constituted within ninety days of the decision, if the tribunal makes a final award, or if the claim is withdrawn. 17 As of 31 March 2017, the SIAC reported that it had received a total of fifty-seven emergency arbitrator applications. 18 On 1 January 2012, the International Chamber of Commerce (ICC) introduced emergency arbitrator provisions in its rules. 19 The ICC had previously adopted the Pre-Arbitral Referee Rules in 1990, a precursor to the emergency arbitrator provisions, under which an appointed referee was empowered to grant interim measures prior to the constitution of the arbitral tribunal. However, this procedure was rarely used, notably given that it required a separate written agreement, distinct from the arbitration clause, to be applicable. 20 By contrast, the ICC emergency arbitrator rules of 2012 apply on an opt-out basis, in all cases under arbitration agreements concluded on or after 1 January 2012, absent contrary party agreement and unless the parties had agreed to another pre-arbitral procedure for the granting of interim measures. 21 Upon receipt of the emergency arbitrator application, the President of the ICC Court first determines whether the provisions are applicable, and then appoints an emergency arbitrator within as short a time as possible, normally within two days. 22 The emergency 12 See s. 3.6 infra. 13 SIAC Arbitration Rules, in force as of 1 July 2010, Rules 1.2, 26.2, and Sch Ibid., Sch. 1, paras 2 and 5 (in the version in force as of 1 Aug. 2016, see Sch. 1, para. 7). 15 Ibid., Sch. 1, para. 6 (in the version in force as of 1 Aug. 2016, see Sch. 1, para. 8). 16 Ibid., Sch. 1, para. 9 (there was no time limit in the 2010 version of the rules). 17 Ibid., Sch. 1, para. 5 (in the version in force as of 1 Aug. 2016, see Sch. 1, para. 10). 18 SIAC, Statistics: Total Number of Cases Handled by SIAC as of 31 March 2017, (accessed 5 Jan. 2018). 19 ICC Arbitration Rules, in force as of 1 Jan. 2012, Art. 29, App. V. 20 E. Gaillard & P. Pinsolle, The ICC Pre-Arbitral Referee: First Practical Experience, 20(1) Arb. Int l 13 14, 24 (2004). 21 ICC Arbitration Rules, in force as of 1 Jan. 2012, Art. 29(6) and App. V (same provisions in the version in force as of 1 Mar. 2017). 22 Ibid., App. V, Arts 1(5) and 2(1) (same provisions in the version in force as of 1 Mar. 2017).

5 EMERGENCY ARBITRATORS VERSUS THE COURTS 279 arbitrator is then to establish a procedural timetable also within as short a time as possible, normally within two days from the transmission of the file 23 and render his or her decision in the form of an order within fifteen days of transmission of the file. 24 The order of the emergency arbitrator ceases to be binding if the President of the ICC Court terminates the proceeding on the basis that the request for arbitration had not been received by the Secretariat within ten days of receiving the emergency arbitrator application (though this time limit can be extended by the emergency arbitrator). 25 It also ceases to be binding if the ICC Court accepts a challenge against the arbitrator, upon the arbitral tribunal s final award, or upon the withdrawal of all claims or discontinuance of the arbitration. 26 On 31 August 2017, the ICC reported that it had received a total of sixty-one emergency arbitrator applications to date. 27 This number has since reportedly increased to seventy-two applications by the end of 2017, resulting in fifty-nine orders. In 2017 alone, the ICC registered twenty-one emergency arbitrator applications, involving fifty-eight parties from thirty-one different countries, slightly down from the twenty-five cases filed in Eight further cases have been filed already in 2018, bringing the total number of filed emergency arbitrator cases to date to seventy-eight. The Hong Kong International Arbitration Centre (HKIAC) introduced its emergency arbitrator provisions in 2013, which apply to all cases under arbitration agreements concluded on or after 1 November 2013, absent contrary agreement. 28 Under the HKIAC Arbitration Rules, the HKIAC first determines whether to accept the application for emergency relief and then seeks to appoint the emergency arbitrator within two days of receipt of the application. 29 The emergency arbitrator has broad powers to rule on objections to jurisdiction and admissibility and can render his or her decision in the form of a decision, order or award. 30 As under the ICC Rules, the decision is to be rendered within fifteen days of transmission of the file to the emergency arbitrator Ibid., App. V, Art. 5(1) (same provision in the version in force as of 1 Mar. 2017). 24 Ibid., Art. 29(2) and App. V, Art. 6(1) and (4) (same provisions in the version in force as of 1 Mar. 2017). By specifying that the form of the decision shall be an order, it is not subject to the scrutiny of the ICC Court, which, under Art. 34 of the Rules, extends only to awards. 25 Ibid., App. V, Arts 1(6) and 6(6)(a) (same provisions in the version in force as of 1 Mar. 2017). 26 Ibid., App. V, Art. 6(6) (same provision in the version in force as of 1 Mar. 2017). 27 ICC, Full 2016 ICC Dispute Resolution Statistics Published in Court Bulletin, (accessed 31 Aug. 2017). 28 HKIAC Administered Arbitration Rules, in force as of 1 Nov. 2013, Arts 1.4 and 23.1, Sch Ibid., Sch. 4, para Ibid., Sch. 4, paras Ibid., Sch. 4, para. 12.

6 280 JOURNAL OF INTERNATIONAL ARBITRATION The decision of the emergency arbitrator ceases to be binding if the emergency arbitrator or tribunal so decide, upon the issuance of a final award, upon withdrawal of all claims or discontinuance of the arbitration, or if the tribunal is not constituted within ninety days from the date of the emergency decision. 32 In 2016, the HKIAC reported that it had received a total of eight emergency arbitrator applications to date. 33 In 2014, the London Court of International Arbitration (LCIA) likewise adopted emergency arbitrator provisions, on an opt-out basis, to apply to cases under arbitration agreements concluded on or after 1 October If the LCIA grants the application, it shall appoint the emergency arbitrator within three days of receipt of the application, 35 and the emergency arbitrator may rule on his jurisdiction and admissibility 36 and issue a decision in the form of an order or award no later than fourteen days following his or her appointment. 37 In April 2017, the LCIA reported that it had received one application for the appointment of an emergency arbitrator. 38 While emergency arbitrator provisions differ slightly between arbitral institutions, they are all based on the premise that emergency arbitrators are appointed prior to the constitution of the arbitral tribunal and are only competent to rule on the application for interim relief, not on any substantive issues. Once the arbitral tribunal is constituted, the emergency arbitrator is functus officio, and the decision issued by the emergency arbitrator may thereafter be reconsidered, modified or vacated by the arbitral tribunal. Table 1 summarizes the emergency arbitrator provisions in the above-mentioned arbitral institutions. One noteworthy fact is that the rules of all the above arbitral institutions provide for the general rule that emergency arbitrators shall not act in the subsequent arbitration. This is based on the rationale that: the proceedings taken, the information obtained, and the decision rendered under emergency measure rules should remain confidential and hence should not affect the decision concerning the substance of the case where different fact finding and evidentiary procedures exist Ibid., Sch. 4, para HKIAC, 2016 Case Statistics, (accessed 5 Jan. 2018). 34 LCIA Arbitration Rules, in force as of 1 Oct. 2014, Art Ibid., Art Ibid., Arts 9.13 and Ibid., Arts 9.7 and LCIA, LCIA Facts and Figures 2016: A Robust Caseload, MediaId=570 (accessed 5 Jan. 2018). 39 A. Yesilirmak, Chapter 4 Emergency Arbitral Provisional Measures, inprovisional Measures in International Commercial Arbitration, 12 International Arbitration Law Library, (Kluwer Law International 2005), para

7 EMERGENCY ARBITRATORS VERSUS THE COURTS 281 Table 1 Comparison of Emergency Arbitrator Provisions Institution Year Introduced Temporal Application Timing of EA Application Timing of EA Appointment Timing of Measure Form of Measure ICDR 2006 Arbitration agreements entered on or after 1 May 2006 With or after submission of notice of arbitration Within 1 business day of receipt No provision Order or interim award SCC 2010 Any arbitration agreement referring to SCC Rules Any time before referral to the tribunal (but must commence arbitration within 30 days of EA decision) Within 24 hours of receipt No later than 5 days from referral to EA Order or award SIAC 2010 Arbitrations commenced on or after 1 July 2010 With or after submission of notice of arbitration Within 1 day of receipt Within 14 days of appointment of EA Order or award Access to Courts Application Statistics At any time 70 (as of fall 2016) At any time 27 (as of June 2017) At any time prior to the constitution of the tribunal or in exceptional circumstances thereafter 57 (as of March 2017)

8 282 JOURNAL OF INTERNATIONAL ARBITRATION Institution Year Introduced Temporal Application ICC 2012 Arbitration agreements entered into on or after 1 January 2012 HKIAC 2013 Arbitration agreements concluded on or after 1 November 2013 LCIA 2014 Arbitration agreements entered into on or after 1 October 2014 Timing of EA Application Any time before constitution of the tribunal (but must file RFA within 10 days of EA application) With or after submission of notice of arbitration With or after submission of RFA or response thereto Timing of EA Appointment Within 2 days of receipt Within 2 days of receipt Within 3 days of receipt Timing of Measure No later than 15 days from transmission of file to EA Within 15 days of transmission of file to EA No later than 14 days from appointment of EA Form of Measure Access to Courts Application Statistics Order At any time prior to making EA application and in appropriate circumstances even thereafter 61 (as of August 2017) Decision, order or award At any time 8 (as of 2016) Order or award At any time before the formation of the arbitral tribunal 1 (as of April 2017)

9 EMERGENCY ARBITRATORS VERSUS THE COURTS 283 However, unlike the arbitration rules of the ICDR, 40 SCC, 41 SIAC, 42 and HKIAC, 43 which expressly allow the parties to derogate from the general rule if they agree that the emergency arbitrator may act in the subsequent arbitration related to the emergency application, 44 the ICC Rules provide that [a]n emergency arbitrator shall not act as an arbitrator in any arbitration relating to the dispute that gave rise to the Application. 45 Considering an emergency arbitrator s professionalism and dedication to familiarizing him or herself with the issues of the case and rendering a decision thereon within a matter of days, the parties may nonetheless jointly wish to appoint the same person as an arbitrator (presumably as President or Sole Arbitrator). Such appointment may even address concerns regarding the delays in an arbitral tribunal s constitution and some arbitrators lack of familiarity with the issues at stake, notably when holding the case management conference. While the ICC Rules thus do not expressly permit parties to appoint an emergency arbitrator to the tribunal by joint agreement, it has been commented that: the ICC will, as a matter of principle, give party autonomy precedence in spite of the seemingly clear and mandatory wording of Art. 2(6) of Appendix V, at least if the parties have agreed on a sole arbitrator or, in case of a three-member tribunal, if the emergency arbitrator is to serve as president of the tribunal. 46 Indeed, the ICC Secretariat notes that: this provision does not prevent all parties from deciding otherwise by mutual agreement. Such an agreement would be easy to implement in the case of a sole arbitrator, but it is difficult to see how the emergency arbitrator could serve in any position other than president in the case of a three-member tribunal POWER OF NATIONAL COURTS TO ORDER INTERIM RELIEF The rise of emergency arbitrator provisions in the rules of arbitral institutions does not affect the power of national courts to order interim relief prior to the constitution of the arbitral tribunal. The arbitration rules of all the institutions 40 ICDR International Arbitration Rules, in force as of 1 June 2014, Art. 6(5). 41 Arbitration Rules of the Arbitration Institute of the SCC, in force as of 1 Jan. 2017, App. II, Art. 4(4). 42 SIAC Arbitration Rules, in force as of 1 Aug. 2016, Sch. 1, para HKIAC Administered Arbitration Rules, in force as of 1 Nov. 2013, Sch. 4, para The LCIA Rules are silent on this point. 45 ICC Arbitration Rules, in force as of 1 Mar. 2017, App. V, Art. 2(6). 46 C. Boog, Chapter 4, Part II: Commentary on the ICC Rules, Article 29 [Emergency arbitrator], inarbitration in Switzerland: The Practitioner s Guide, para. 52 (Arroyo ed., Kluwer Law International 2013). 47 J. Fry, S. Greenberg & F. Mazza, Chapter 3: Commentary on the 2012 Rules in The Secretariat s Guide to ICC Arbitration, para (2012).

10 284 JOURNAL OF INTERNATIONAL ARBITRATION examined above expressly specify that an application for the appointment of an emergency arbitrator does not preclude access to national courts for interim relief. For instance, the ICDR Arbitration Rules states that: [a] request for interim measures addressed by a party to a judicial authority shall not be deemed incompatible with this Article 6 [emergency arbitrator provisions] or with the agreement to arbitrate or a waiver of the right to arbitrate. 48 The SCC and HKIAC Arbitration Rules also contain very similar rules, providing, respectively, that [a] request for interim measures made by a party to a judicial authority is not incompatible with the arbitration agreement or with these Rules 49 and [a] request for interim measures addressed by any party to a competent judicial authority shall not be deemed incompatible with the arbitration agreement(s), or as a waiver thereof. 50 According to the LCIA Arbitration Rules: Article 9B shall not prejudice any party s right to apply to a state court or other legal authority for any interim or conservatory measures before the formation of the Arbitration Tribunal; and it shall not be treated as an alternative to or substitute for the exercise of such right. 51 The SIAC and ICC Arbitration Rules go further to specify that a party may apply to national courts even after the constitution of the tribunal in exceptional or appropriate circumstances. Under the SIAC Arbitration Rules, [a] request for interim relief made by a party to a judicial authority prior to the constitution of the Tribunal, or in exceptional circumstances thereafter, is not incompatible with these Rules. 52 Under the ICC Arbitration Rules: The Emergency Arbitrator Provisions are not intended to prevent any party from seeking urgent interim or conservatory measures from a competent judicial authority at any time prior to making an application for such measures, and in appropriate circumstances even thereafter, pursuant to the Rules. Any application for such measures from a competent judicial authority shall not be deemed to be an infringement or a waiver of the arbitration agreement. Any such application and any measures taken by the judicial authority must be notified without delay to the Secretariat ICDR International Arbitration Rules, in force as of 1 June 2014, Art. 6(7). 49 Arbitration Rules of the Arbitration Institute of the SCC, in force as of 1 Jan. 2017, Art. 37(5). 50 HKIAC Administered Arbitration Rules, in force as of 1 Nov. 2013, Art See also Sch. 4, para. 22, providing that the emergency arbitrator procedures are not intended to prevent any party from seeking urgent interim or conservatory measures from a competent judicial authority at any time. 51 LCIA Arbitration Rules, in force as of 1 Oct. 2014, Art SIAC Arbitration Rules, in force as of 1 July 2010, Rule 30.3 (same provision in the version in force as of 1 Aug. 2016). 53 ICC Arbitration Rules, in force as of 1 Mar. 2017, Art. 29(7). While the cited article refers to applications to judicial authorities after making an emergency arbitrator application, Art. 28(2) of the ICC Rules specifies that parties may apply to a judicial authority for interim or conservatory measures in appropriate circumstances even after transmission of the file to the arbitral tribunal.

11 EMERGENCY ARBITRATORS VERSUS THE COURTS 285 Therefore, these arbitral institutions expressly recognize that emergency arbitrators and national courts generally have concurrent jurisdiction to grant interim relief. Where courts and arbitral tribunals have overlapping competence, some national arbitration laws expressly accord arbitral tribunals with priority over courts for interim measures. 54 Gary Born even states that court-ordered provisional measures serve, and may only serve, to support the arbitral process and arbitral tribunal s jurisdiction. 55 In France, there are no statutory provisions on emergency arbitrators, but the Code of Civil Procedure provides that: [T]he existence of an arbitration agreement, insofar as the arbitral tribunal has not yet been constituted, shall not preclude a party from applying to a court for measures relating to the taking of evidence or provisional or conservatory measures. 56 As such, it is clear that French courts have no jurisdiction once a tribunal has been constituted, 57 but prior to that, a party can turn either to the French courts or to an emergency arbitrator for interim relief without recourse to a French court constituting a breach or waiver of the arbitration agreement. French law provides that arbitral tribunals may order upon the parties any conservatory or provisional measures that it deems appropriate, set conditions for such measures and, if necessary, attach penalties to such order. 58 Though there is some doctrinal debate as to whether an emergency arbitrator constitutes an arbitral tribunal with the aforementioned powers to order interim relief or is rather an expert or third-party adjudicator, it is generally accepted that the above provision does apply to emergency arbitrators due to the parties agreement to the emergency arbitrator procedure and intent to vest him or her with the power to grant interim measures. 59 The debate as to the emergency 54 See D. F. Donovan, The Allocation of Authority Between Courts and Arbitral Tribunals to Order Interim Measures A Survey of Jurisdictions, the Work of UNCITRAL and a Model Proposal, innew Horizons in International Commercial Arbitration and Beyond, 12 ICCA Congress Series, ( van den Berg ed., Kluwer Law International 2005). 55 G. Born, Chapter 17: Provisional Relief in International Arbitration, ininternational Commercial Arbitration 2523 (2d ed., Kluwer Law International 2014). 56 Free translation of French Code of Civil Procedure, Art. 1449: L existence d une convention d arbitrage ne fait pas obstacle, tant que le tribunal arbitral n est pas constitué, à ce qu une partie saisisse une juridiction de l Etat aux fins d obtenir une mesure d instruction ou une mesure provisoire ou conservatoire. Sous réserve des dispositions régissant les saisies conservatoires et les sûretés judiciaires, la demande est portée devant le président du tribunal de grande instance ou de commerce, qui statue sur les mesures d instruction dans les conditions prévues à l article 145 et, en cas d urgence, sur les mesures provisoires ou conservatoires sollicitées par les parties à la convention d arbitrage. 57 D. Paraguacuto-Mahéo & C. Lecuyer-Thieffry, Emergency Arbitrator: A New Player in the Field The French Perspective, 40(3) Fordham Int l L.J (2017). 58 Free translation of French Code of Civil Procedure, Art. 1468: Le tribunal arbitral peut ordonner aux parties, dans les conditions qu il détermine et au besoin à peine d astreinte, toute mesure conservatoire ou provisoire qu il juge opportune. 59 Paraguacuto-Mahéo & Lecuyer-Thieffry, supra n. 57, at

12 286 JOURNAL OF INTERNATIONAL ARBITRATION arbitrator s legal status is related more to the question of enforceability, rather than to his or her powers, as elaborated below. 60 In England, however, the court-subsidiarity approach may have been taken too far, as illustrated in the Gerald Metals S.A. v. Timis judgment rendered by the English High Court in September Claimant Gerald Metals had inter alia made an emergency arbitrator application before the LCIA, requesting an urgent interim freezing order. 62 When the LCIA refused its application, 63 the claimant then applied to the English High Court for the same relief under section 44 of the English Arbitration Act 1996, which governs the powers of courts to act in support of arbitral proceedings. Leggatt, J. ultimately rejected the application, 64 relying on section 44(5) of the English Arbitration Act 1996, which provides that: In any case the court shall act only if or to the extent that the arbitral tribunal, and any arbitral or other institution or person vested by the parties with power in that regard, has no power or is unable for the time being to act effectively. Leggatt, J. reasoned that the LCIA emergency arbitrator provisions aimed at reduc[ing] the need to invoke the assistance of the court in cases of urgency by enabling an arbitral tribunal to act quickly in an appropriate case and that it is only in cases where those powers, as well as the powers of a tribunal constituted in the ordinary way, are inadequate, or where the practical ability is lacking to exercise those powers, that the court may act under section This case thus suggests that the English court s powers to issue interim orders are limited only to circumstances where the emergency arbitrator or arbitral tribunal is unable to provide the same relief. According to this interpretation, a party seeking interim relief would have no choice but to apply first to the institution for an emergency arbitrator, and if the institution or the emergency arbitrator refuses such an application, the courts will be unlikely to grant the same relief. While it remains to be seen whether courts would reach a similar decision in future cases, for the moment, parties that wish to preserve access to the English courts for urgent interimreliefmaybeadvisedtooptoutof emergency arbitrator provisions. It is worth noting that the national 60 See s. 2.2 infra. 61 Gerald Metals S.A. v. Trustees of the Timis Trust & others [2016] EWHC 2327 (CH). 62 Ibid., at Ibid., at 9 (according to J. Leggatt, the only inference that can in my view be drawn from the refusal of Gerald Metal s application is that the LCIA was not persuaded that the application was so urgent that it needed to be decided before the arbitral tribunal is constituted in the ordinary way. ) 64 Ibid., at Ibid., at 7 8.

13 EMERGENCY ARBITRATORS VERSUS THE COURTS 287 arbitration laws of Singapore 66 and the Netherlands 67 also have similar provisions according priority to arbitrators over courts. While these provisions have notbeentestedtotheauthors knowledge, the same word of caution may be given to parties wishing to safeguard their rights to apply to Singaporean or Dutch courts for interim relief. 2 ENFORCEABILITY OF DECISIONS ISSUED BY THE EMERGENCY ARBITRATOR While emergency arbitrators have the authority to grant orders for interim relief that are contractually binding upon the parties, they lack coercive powers to compel recalcitrant parties to comply with a decision. Although it is reported that most parties comply voluntarily with tribunal-ordered interim measures, 68 there exist concerns about the enforceability of emergency arbitrator decisions in national courts in the event of non-compliance. Indeed, according to the 2015 International Arbitration Survey conducted by Queen Mary University, 46% of survey respondents indicated that they would rather seek emergency relief from domestic courts than from emergency arbitrators, with 79% of respondents citing enforceability concerns as their main reason for preferring domestic courts. 69 Questions regarding enforceability revolve around the legal status of the emergency arbitrator and his or her decision; whether the emergency arbitrator is an arbitral tribunal ; and whether the decision constitutes an award for the purposes of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). Article V(1)(e) of the New York Convention provides that recognition and enforcement of the award may be refused if the award has not yet become binding on the parties. The enforceability of interim measures ordered by a tribunal or an emergency arbitrator depends largely on the national laws of the jurisdiction in which enforcement is sought. Some national courts have accepted interim awards by emergency arbitrators to be binding within the meaning of the New York Convention, while others have refused to enforce such decisions on the basis that they are not binding awards. 66 Singaporean International Arbitration Act, s. 12A(6). 67 Dutch Code of Civil Procedure, Art. 1022c. 68 Fry, Greenberg & Mazza, supra n. 47, para Queen Mary University of London, 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration 27 28, (accessed 5 Jan. 2018).

14 288 JOURNAL OF INTERNATIONAL ARBITRATION 2.1 JURISDICTIONS FAVOURING THE ENFORCEABILITY OF EMERGENCY ARBITRATOR- ORDERED INTERIM MEASURES A few states have side-stepped the debate surrounding the legal status of the emergency arbitrator and his or her decision altogether by passing amendments to their national arbitration laws. Singapore was the first country to pass such amendments. In April 2012, a Bill was passed to amend the International Arbitration Act, whereby emergency arbitrator was expressly included in the definition of arbitral tribunal. 70 Decisions by emergency arbitrators thus benefit from Article 12(6), which provides that tribunal orders or directions shall be enforceable in the same manner as court judgments: all orders or directions made or given by an arbitral tribunal in the course of an arbitration shall, by leave of the High Court or a Judge thereof, be enforceable in the same manner as if they were orders made by a court and, where leave is so given, judgment may be entered in terms of the order or direction. 71 In 2013, Hong Kong also passed a Bill to amend its Arbitration Ordinance, where it added a provision that renders decisions by emergency arbitrators enforceable like court judgments upon leave from the court: Any emergency relief granted, whether in or outside Hong Kong, by an emergency arbitrator under the relevant arbitration rules is enforceable in the same manner as an order or direction of the Court that has the same effect, but only with the leave of the Court. 72 However, the amendment also specifies that the court may not grant leave to enforce emergency relief granted outside of Hong Kong unless the relief falls within one of the types of interim orders listed in the law. 73 The listed types are broad, however, as they include orders to maintain or restore the status quo, to prevent or refrain from actions likely to cause harm or prejudice to the arbitral process, preserve assets or evidence, or give security for costs. 74 Likewise, in the Netherlands, amendments were made to the Dutch Arbitration Act (contained in the Dutch Code of Civil Procedure) on 1 January 2015, to provide that interim awards granting provisional relief constitute arbitral awards which are enforceable upon leave from the court International Arbitration (Amendment) Bill, s Singapore International Arbitration Act (Ch. 143A), s. 12(6). 72 Hong Kong Arbitration (Amendment) Bill 2013, s. 22B(1). 73 Ibid., s. 22B(2). 74 Ibid. 75 Dutch Arbitration Act, in force as of 1 Jan. 2015, Arts 1043b(2) and 1043b(4).

15 EMERGENCY ARBITRATORS VERSUS THE COURTS 289 On 25 June 2015, Bolivia also passed an amendment to its Conciliation and Arbitration Law No. 708 to add specific provisions on emergency arbitrators. In addition to detailing the emergency arbitrator s powers and emergency arbitrator procedure to be followed, 76 the law also adds that if judicial assistance is required, the competent judge will order compliance therewith within three days of notification of the decision by the arbitral institution. 77 The competent judge is only empowered to review whether the issued decision conforms to the following rules of public order: it may only affect the goods, rights and obligations of the parties, and the request for arbitration must be filed within fifteen days of the interim order. 78 Unlike the above laws, the UNCITRAL Model Law on Commercial Arbitration ( Model Law ) unfortunately does not tackle the question of enforceability directly. The Model Law was updated in 2006 to render interim measures ordered by arbitral tribunals enforceable, providing, at Article 17H(1), that: [a]n interim measure issued by an arbitral tribunal shall be recognized as binding and, unless otherwise provided by the arbitral tribunal, enforced upon application to the competent court. While this provision should thus apply to interim measures, whether given in the form of an award or order, Article 2(b) of the Model Law only defines arbitral tribunal as a sole arbitrator or a panel of arbitrators, leaving open the question of whether an emergency arbitrator would constitute an arbitral tribunal for the purposes of enforceability. Several states have adopted the 2006 UNCITRAL Model Law, including Article 17H(1), including, for instance, Australia, Belgium, and Korea, 79 but to the authors knowledge, courts have yet to interpret the applicability of Article 17H to interim measures issued by emergency arbitrators. In the United States, there are no specific legislative provisions on the enforceability of the emergency arbitrator s decisions, but national courts have nevertheless tended to favour their enforcement. Modern case law indicates that courts will enforce interim or conservatory measures ordered by arbitral tribunals on the reasoning that the decision is final as regards the request for such provisional measures and that judicial enforcement of such measure is 76 Bolivian Conciliation and Arbitration Law No. 708, Arts Ibid., Art. 71(II). 78 Ibid., Art. 71(II), referring to Arts 67(II) (III). 79 UNCITRAL, Status: UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006, Model_arbitration_status.html (accessed 5 Jan. 2018).

16 290 JOURNAL OF INTERNATIONAL ARBITRATION important to safeguard the efficiency of arbitration. 80 Concerning emergency arbitrator decisions, in October 2013, in the Yahoo v. Microsoft case, the Southern District Court of New York confirmed a decision rendered by an emergency arbitrator under the AAA Rules, holding that although the emergency arbitrator issued an injunction that was in essence, final, 81 this was within the scope of his authority to grant relief necessary to maintain the status quo. 82 The court then confirmed the emergency award, citing authority that if an arbitral award of equitable relief based upon a finding of irreparable harm is to have any meaning at all, the parties must be capable of enforcing or vacatingitatthetimeitismade. 83 By contrast, in the 2010 Chinmax v. Alere San Diego case, the Southern District Court of California dismissed a petition to vacate an interim order issued by an emergency arbitrator under the AAA Rules, on the basis that it was not final. 84 In making this finding, the court referred to the ICDR Rules, which expressly allow the arbitral tribunal to reconsider, modify, or vacate the interim order, and to the fact that the emergency arbitrator issued the order in order to facilitate any consideration by the full panel. 85 If this judgment were interpreted as suggesting that it is the arbitral tribunal, rather than the court, that has authority to review the emergency decision, Gary Born comments that its approach would only be appropriate in an annulment setting (a party should request the tribunal to reconsider and annul the emergency decision), not in an action for enforcement (duty of courts to recognize and enforce) G. Born, supra n. 55, at 2513; B. Baigel, The Emergency Arbitrator Procedure Under the 2012 ICC Rules: A Juridical Analysis, 31(1) J. Int l Arb. Kluwer Law International 17 (2014); A. A. Santens & J. Kudrna, The State of Play of Enforcement of Emergency Arbitrator Decisions, 34(1) J. Int l Arb. Kluwer Law International (2017), citing Blue Cross Blue Shield of Michigan v. Medimpact Healthcare Systems, 2010 E.D. Mich., 2010 WL and Draeger Safety Diagnostics v. New Horizon Interlock, 2011 E.D. Mich., 2011 WL Yahoo! Inc. v. Microsoft Corp., No. 13-cv-7237, 2013 U.S. Dist. LEXIS (S.D.N.Y. 21 Oct. 2013), at 10 and Ibid., at Ibid., at 13. See also Arrowhead Global Solutions v. Datapath Inc, 166 Fed. Appx. 39, 44 (4th Cir. 2006), at 11, where the same rationale was accepted, in the context of a tribunal-ordered interim award, that arbitration panels must have the power to issue temporary equitable relief in the nature of a preliminary injunction, and district courts must have the power to confirm and enforce that equitable relief as final in order for the equitable relief to have teeth. 84 Chinmax Medical Systems Inc. v. Alere San Diego Inc., 2011 S.D. Ca., 2011 WL Ibid., at G. Born, supra n. 55, at fn See also W. G. Bassler, Are Emergency Awards Enforceable in the United States? A Guide for the Perplexed, incontemporary Issues in International Arbitration and Mediation: The Fordham Papers 47 (Rovine ed., Brill Nijhoff 2015) (commenting that it is questionable whether this decision has much of a judicial shelf life in light of the cases holding that interim awards that insure the viability of the final award possess sufficient indicia of finality to be enforceable. ).

17 EMERGENCY ARBITRATORS VERSUS THE COURTS JURISDICTIONS NOT FAVOURING THE ENFORCEABILITY OF EMERGENCY ARBITRATOR-ORDERED INTERIM MEASURES Unlike the above-described countries, courts in some jurisdictions have been less favourable to enforcing emergency arbitrator-ordered measures. In Russia, for instance, interim orders are unenforceable, as courts have consistently held that only final arbitral awards are enforceable. 87 In Sweden, the Swedish Arbitration Act is silent as to the enforceability of tribunal-ordered interim measures, but the travaux préparatoires reveal that tribunalordered interim measures are not enforceable in Sweden. 88 Likewise, for Finland, the Finnish Arbitration Act has no provisions on the enforceability of arbitrator-ordered interim measures, but such measures are not considered enforceable awards. 89 In France, the legal qualification of a tribunal-ordered interim decision is highly significant, as only arbitral awards are subject to recognition and enforcement 90 and set aside proceedings. 91 French courts adopt a substanceover-form approach and thus do not consider themselves bound by the terminology utilized by an arbitrator, 92 meaning that a decision entitled an order may be enforceable, provided it conforms to the definition of an arbitral award. The Court of Appeal first ruled on this question in the 2003 SNPC v. Total Fina case, 93 in the context of a procedural order issued by a referee under the ICC Pre-Arbitral Referee procedure. In that case, the state sought to set aside the referee s order, but the court ultimately rejected the application as inadmissible, on the basis that it was not an award but merely a contractually binding order without res judicata effect. 94 To reach this conclusion, the court identified that the preliminary question to be raised was whether the referee had been acting as an arbitrator; only if the answer were affirmative would it be relevant to determine whether the referee s decision qualified as an order or an award. 95 The court then examined the ICC 87 A. A. Kostin & D. L. Davydenko, Chapter 7: Russia, inlaw and Practice of International Arbitration in the CIS Region, para (Hobér & Kryvoi eds, Kluwer Law International 2017). 88 P. Shaughnessy, Chapter 5 Interim Measures, ininternational Arbitration in Sweden: A Practitioner s Guide 107 (Franke & Magnusson eds, Kluwer Law International 2013). 89 G. Möller, National Report for Finland (2014), inicca International Handbook on Commercial Arbitration 1 35, Supplement No. 79 (Paulsson & Bosman eds, Kluwer Law International 2014). 90 French Code of Civil Procedure, Art Ibid., Art Société Braspetro Oil Services (Brasoil) v. GMRA, Cour d appel de Paris (1 Ch. C), 1 July 1999, Revue de l Arbitrage 4, Comité Français de l Arbitrage 836 (1999). 93 Société Nationale des Pétroles du Congo et République du Congo v. Société Total Fina Elf E & P Congo, Cour d appel de Paris (1re Ch. C), 29 Apr. 2003, 21 ASA Bulletin 3 (2003). 94 Ibid., at Ibid., at 664.

18 292 JOURNAL OF INTERNATIONAL ARBITRATION foreword and provisions on the pre-arbitral procedure, noting that the drafters had deliberately avoided using the term arbitration. 96 The court further noted that the order in question had not touched on the merits of the case nor modified the situation of the parties, merely having ordered the Republic of Congo to refrain from interfering with the performance of the contract until the tribunal s ruling. 97 The above judgment was subject to criticism for its overly formalistic approach, the brevity of its reasoning, and its focus on the nature of the referee s mandate, rather than on the lack of finality in his decision. 98 In 2011, the French Supreme Court confirmed prior case law, 99 defining an arbitral award as a decision of an arbitral tribunal which finally settles in whole or in part, the underlying dispute either on the merits, on jurisdiction or on any procedural issue which leads the tribunal to put an end to the proceedings. 100 According to this definition, an award is one that: (1) is rendered by arbitrator(s), 101 (2) which settles with finality 102 (3) an issue in dispute 103 (4) in whole or part, 104 and (5) leads to an end of the proceeding. 105 Based on the above definition, a measure issued by an emergency arbitrator would not constitute an award under French law, given that the order is provisional in nature and may be modified or vacated by the emergency arbitrator or the subsequently constituted tribunal. However, the Paris Court of Appeal s judgment of October 2004 shows some room for flexibility. In the Otor case, the applicants sought to set aside an arbitral award, inter alia ordering them to not call into question the composition of the company board of directors until the upcoming award on the merits. 106 The Court of Appeal held that the application was admissible, rejecting defendants argument that the award was not subject to set 96 Ibid., at Ibid., at Gaillard & Pinsolle, supra n. 20, at 22, citing A. Mourre, Refere Pre-arbitral de la CCI: To Be or Not to Be a Judge in (2003) Gaz. Pal. (28 29 May) 5; E. Loquin (2003) RTD Com. (July/Sept.) Société Sardisud et autre v. Société Technip et autre, Cour d appel de Paris (1er Ch. C), 25 Mar. 1994, 2 Revue de l Arbitrage (1994). 100 Groupe Antoine Tabet v. République du Congo, Cass. 1e civ., 12 Oct As opposed to an arbitral institution, for instance: Société Appareils Dragon v. Empresa central de abastecimientas y vantas de equipos, Cour de cassation (2 Ch. civile), 8 June 1983, 3 Revue de l Arbitrage 309 (1987). 102 Société Braspetro Oil Services (Brasoil) v. GMRA, Cour d appel de Paris (1 Ch. C), 1 July 1999, 4 Revue de l Arbitrage 836 (1999). 103 P. Fouchard, Observations Société Albert, Société Courret Guguen et M. Rambour ès qual. v. Société Frabeltex, Cour d appel de Paris (1re Ch. C), 15 March 2001, 1 Revue de l Arbitrage 218 (2003). 104 Société Industrialexport-Import v. Société GECI et GFC, Cour d appel de Paris (1 Ch. suppl.), 9 July 1992, 2 Revue de l Arbitrage 305 (1993). 105 C. Jarrosson, Note Société Industrialexport-Import v. société GECI et GFC, Cour d appel de Paris (1Ch. suppl.), 9 July 1992, 2 Revue de l Arbitrage 11 (1993). 106 Société Otor Participations et autres v. Société Carlyle Holdings 1 et autre, Cour d appel de Paris (1e Ch. C), 7 Oct. 2004, 3 Revue de l Arbitrage 738 (2005).