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Emergency arbitrators: a passing trend?

29 January 2014
A feature of the wave of revisions to the rules of various arbitral institutions over recent years has been the rise of the emergency arbitrator.  The International Centre for Dispute Resolution ("ICDR") and Stockholm Chamber of Commerce ("SCC") were early trend-setters, introducing emergency arbitrator procedures that came into force in 2006 and 2010 respectively.  The emergency arbitrator has since become widespread in international arbitration rules: institutions including the Hong Kong International Arbitration Centre ("HKIAC"), Singapore International Arbitration Centre ("SIAC"), Kuala Lumpur Regional Centre for Arbitration ("KLRCA"), the Swiss Chambers of Commerce and, most notably, the International Chamber of Commerce ("ICC") have all followed suit.

However, despite the recent popularity of emergency arbitrator provisions at the rules revision stage, statistics from both the SCC and ICC have recently emerged which suggest that these procedures have had little take-up in practice.

On 20 January, the SCC issued a report on all cases in which an emergency arbitrator was appointed since its emergency arbitrator provisions were introduced.  Over the four year period from 1 January 2010 to 31 December 2013, there were only nine applications, and emergency relief was only granted in two of those cases; however, as the report explains, in two further cases the respondents gave undertakings that rendered the order of an emergency arbitrator unnecessary.

The ICC has only published statistics for 2012, the first year in which the emergency arbitrator provisions were in force.  They reveal that, during that period, there were only two applications: in one, the emergency arbitrator issued an order rejecting the application, and the other was inadmissible.  This is perhaps unsurprising: because the ICC emergency arbitrator provisions only apply to arbitration agreements entered into after 1 January 2012 (when the revised ICC Rules took effect), it was inevitably going to take time for applications under those provisions to start to trickle through. However, according to a report in Global Arbitration Review of a recent conference, the ICC has so far only received six applications under its emergency arbitrator provisions, two of which have been granted.  Of the other four, two were dismissed because the arbitration agreement had been concluded before the 2012 ICC Rules took effect, and the other two were rejected for lack of urgency.

On the basis of these low figures, it appears that national courts remain the preferred fora for applications for pre-arbitral emergency relief, rather than emergency arbitrators.  The LCIA is in the process of revising its arbitration rules, which already feature a procedure for the expedited formation of the arbitral tribunal in cases of urgency, rather than an emergency arbitrator procedure.  The revised rules are expected to be released in 2014 and, once published, they will give a further indication of whether or not the emergency arbitrator trend is continuing in full swing.

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