Introduction
The new Arbitration Rules of the International Chamber of
Commerce entered into force as of January 1, 2012 (the
"Rules"). In a general sense, the Rules aim to improve
efficiency in arbitration cases, control expenses and shorten the
duration of arbitration. Within this scope, the Rules provide for
an "emergency arbitrator" procedure. This significant and
remarkable procedure aims to provide urgent interim measures for
parties who cannot await the constitution of an arbitral tribunal.
Emergency Arbitrator Provisions and Scope of Application
Parties in need of urgent interim or conservatory measures and
which cannot await the constitution of an arbitral tribunal may
make an application for such measures (defined as "Emergency
Measures"). This application shall be made in accordance with
Article 29 of the Rules and Appendix V- Emergency Arbitrator Rules
(together referred to as "Emergency Arbitrator
Provisions" or "EAP").
The Emergency Arbitrator Provisions shall be applied within the
scope of arbitration agreements signed on or after January 1, 2012.
If the parties are not willing to apply Emergency Arbitrator
Provisions, the arbitration agreements signed after January 1, 2012
must clearly specify that fact. The parties may agree in writing to
apply EAP to agreements concluded before January 1,
2012.
Pursuant to Article 29(6)(c), EAP shall not be applied if the
parties have agreed to another pre-arbitral procedure that provides
for the granting of conservatory, interim or similar
measures.
Application Proceedings
A party seeking recourse to an emergency arbitrator must provide
the appropriate documents and information for examination of the
dispute; however, it is not necessary for such applicant to have
already submitted a request for arbitration. Nonetheless, the
applicant party is obliged to submit its request for arbitration to
the Secretariat within 10 days following the date of application
for an emergency arbitrator. This period may be extended where the
emergency arbitrator deems necessary.
The application shall contain (among other information): the
circumstances giving rise to the application, the dispute referred
or to be referred to arbitration, a statement of the emergency
measures sought and the reasons why the applicant needs urgent
interim or conservatory measures and any relevant agreements,
especially the arbitration agreement. On the basis of the
information contained in the application, the President of the
Court ("President") considers whether to apply Emergency
Arbitrator Provisions or not. If the President considers, pursuant
to Articles 29(5) and 29(6) of the Rules, that Emergency Arbitrator
Provisions apply, a copy of the application shall be transmitted to
the defendant; if the President considers otherwise - with regards
to some or all of the parties - the parties shall be informed that
the emergency arbitrator proceedings shall not take place.
Since the emergency arbitrator aims to take urgent measures, the
emergency arbitrator shall be appointed within as short a time as
possible. Therefore, the President shall appoint the emergency
arbitrator as quickly as possible, generally within two days.
Nonetheless, the emergency arbitrator appointed by the President
may be challenged. A challenge against the emergency arbitrator
must be made by the party making the challenge within three days
from receipt of the notification of the appointment, or from the
date when that party was informed of the fact and circumstances on
which the challenge is based. The court shall make a decision on
the challenge after the emergency arbitrator and the other party or
parties have had the chance to provide their comments in writing
within a suitable period of time.
Proceedings
In order to conduct an independent and impartial proceeding, the
emergency arbitrator shall sign a statement of acceptance,
availability, impartiality and independence before his appointment
and they shall not act as an arbitrator in any arbitration
proceedings in relation to the dispute that gave rise to the
application.
Within two days from the transmission of the file to the
emergency arbitrator, the emergency arbitrator shall establish a
procedural timetable for the emergency arbitrator proceedings
within as short a time as possible. The proceedings shall be
conducted in the manner the emergency arbitrator deems most
appropriate, taking into account the nature and urgency of the
application.
The emergency arbitrator's decision shall take the form of
an Order. The Order shall be made no later than fifteen days from
the date on which the file was transmitted to the emergency
arbitrator. The President may extend the time limit pursuant to a
reasoned request from the emergency arbitrator or on the
President's own initiative if the President decides it is
necessary to do so.
The parties must respect the emergency arbitrator's Order
and they commit to do so. The orders granted by the emergency
arbitrator are not definitive since the orders of the emergency
arbitrator are not binding on arbitration court in terms of
subject, evaluation and justification. The arbitration court may
amend and limit the orders granted by the emergency arbitrator and
it may nullify them completely as well.
A party or parties' application for urgent interim and
conservatory measures within the scope of the Emergency Arbitrator
Provisions does not prevent them from seeking conservatory or
urgent interim measures from a competent judicial authority before,
or in some cases after, the EAP application is made. Article 29(7)
of the Rules do not deem such measures being sought as breach of or
waiver from the arbitration agreement. However, when interim and
conservatory measures are sought from the competent courts, the
Secretariat should be informed without any delay.
Conclusion
The ICC 2012 Arbitration Rules, which have been in force as of
January 1, 2012, introduce the new concept of an emergency
arbitrator whereby a party in need of urgent interim or
conservatory measures and which cannot await the constitution of an
arbitral tribunal may make an application for such measures
pursuant to the Emergency Arbitrator Rules in Appendix V. The
Parties' application for urgent interim and conservatory
measures within the scope of Emergency Arbitrator Provisions does
not prevent them from seeking conservatory or urgent interim
measures from a competent judicial authority before the EAP
application is made and, in some special cases, even afterwards.
Furthermore, it should be kept in mind that, unless clearly
specified in writing that the parties are not willing to apply
them, the Emergency Arbitrator Provisions shall be applied within
the scope of arbitration agreements signed on or after January 1,
2012.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.