As discussed in our previous post, despite emergency arbitrator procedures becoming increasingly common in institutional arbitration rules, the uptake of the various emergency arbitrator procedures that have been introduced to date has been limited. Since then, the revised LCIA Rules have been published, which (as noted in our post) provide for the appointment of an emergency arbitrator, whilst also retaining the option of applying for the expedited formation of the arbitral tribunal. This confirms that the option of seeking relief from an emergency arbitrator is increasingly expected to be available.
Nonetheless, a recently published analysis of the first cases that have been administered by the ICC under their Emergency Arbitrator Provisions, which were introduced in its 2012 Arbitration Rules, confirms that they have had limited use to date. As of 31 May 2014, ten applications had been filed under the Emergency Arbitrator Provisions, of which two were inadmissible. Of the eight remaining cases, the order sought was (at least partially) granted in four cases, and dismissed in the other four.
However, the amounts in dispute ranged from USD 500,000 to USD 54 million with an average of USD 15 million, indicating that despite the high initial costs involved (a fixed up-front fee of USD 40,000), use of the emergency arbitrator procedure has not been restricted to high value cases.
The interim measures sought were wide-ranging, but fell into four categories:
– Measures to secure the enforcement of the award;
– Measures preserving the status quo;
– Anti-suit injunctions; and
– Interim payments.
This suggests that the emergency arbitrator procedure is being used in a variety of situations, including but not limited to those where equivalent relief may not have been available from a state court.
Nonetheless, some of the key questions associated with emergency arbitrator provisions remain unanswered. In particular, the enforceability of the emergency arbitrator’s order appears not to have been fully tested. In England, neither has the interaction between the emergency arbitrator provisions and s.44(5) of the Arbitration Act 1996 (which provides that the court shall act only to the extent that the arbitral tribunal has no power or is unable for the time being to act effectively), although the tension between the two was noted in the TCC case of Seele Middle East FZE v Drake & Scull Int SA Co earlier this year.