Emergency arbitration is a mechanism that permits a disputing party to request urgent interim relief before an arbitral tribunal is formally constituted. It is designed to provide prompt interim measures in situations where waiting for the constitution of the arbitral tribunal would result in irreparable harm or immediate danger.[1]
There are several important practical considerations that should be taken into account before resorting to emergency arbitration. Balancing urgency and fairness is not an easy task due to the inherent tension between urgency and acting quickly and providing the parties with a sufficient opportunity to present their case. The interplay between state courts and emergency arbitrator’s power to grant interim relief, which are not mutually exclusive, makes this issue even more complex.
Emergency Arbitration in Arbitration Rules
Most leading arbitration institutions have incorporated provisions on emergency arbitration over the past 15 years:
- International Chamber of Commerce (ICC): the ICC Rules introduced emergency provisions in their revision in 2012 (Article 29 of the ICC Rules and Appendix V, see ICC Emergency Arbitration);
- London Court of International Arbitration (LCIA): the LCIA Rules incorporated emergency arbitration provisions in the 2014 revision (Article 9B);
- Stockholm Chamber of Commerce (SCC): The SCC was one of the first institutions to introduce the rules in 2010 (the SCC Rules 2010 and 2023, Appendix II, Emergency Arbitrator);
- Singapore International Arbitration Centre (SIAC): the SIAC Arbitration Rules introduced an emergency arbitrator procedure in their 2010 revision (Rule 30.2 and Schedule 1, Emergency Arbitrator);[2]
- Hong Kong International Arbitration Centre (HKIAC): the HKIAC Administered Arbitration Rules introduced emergency arbitrator provisions in the 2013 revision (Article 23 and Schedule 4);
- The Swiss Arbitration Centre: the Swiss Rules introduced provisions for the appointment of an emergency arbitrator in their 2012 revision (Article 43);
- International Centre for Dispute Resolution (ICDR): the ICDR Rules introduced emergency arbitrator provisions in the 2014 revision (Article 6).
These provisions are now standard features in the rules of most major international arbitration institutions, providing an expedited mechanism for obtaining urgent relief in international disputes prior to the tribunal’s constitution.
When to Use Emergency Arbitration?
Parties typically resort to emergency arbitration in scenarios such as:
- Urgent need to protect assets: to prevent one party from disposing of assets that could cause irreparable damage or “irreparable harm”;
- Preservation of evidence: to ensure that critical evidence is not destroyed or tampered with;
- Immediate injunctions: to halt actions that may undermine the arbitration process or lead to unfair advantages.
When deciding whether to resort to emergency arbitration, parties should consider a number of practical considerations and difficulties that may arise. The procedure is different from the procedure for obtaining interim relief at state courts. It is also different from regular arbitral proceedings in a number of aspects, primarily due to its speed and a more streamlined expedited procedure. Emergency arbitration also grants immediate interim relief that is designed to be a temporary solution until the constitution of the arbitral tribunal. Emergency arbitration is, therefore, typically used for urgent, time-sensitive relief. If the situation requires swift action and the relief cannot wait until the tribunal is constituted, emergency arbitration might be the right choice.
Emergency Procedure – General Rules
The specific emergency arbitration procedure depends on the institutional rules in question. However, procedures are largely similar under all arbitration rules:
- A party submits an application or a request for emergency arbitration, in some cases, even before the arbitration is initiated,[3] but typically together with its Request for Arbitration/Notice of Arbitration, or at any time prior to the formation of the arbitral tribunal.[4]
- The application or request for an emergency arbitrator must contain details regarding the nature of the relief and the urgency of the situation and be accompanied by confirmation that the respective fees have been paid.
- The institution in question then determines whether such an application is acceptable.[5]
- Upon receipt of the application or request, an emergency arbitrator is typically appointed within 1 to 3 days.
The emergency arbitrator enjoys broad powers to conduct the proceedings and has limited time to issue its decision on the requested relief, typically between 5 and 15 days, depending on the institutional rules in question.[6] The jurisdiction of the emergency arbitrator is generally limited to the interim relief sought and does not extend to the full dispute. Emergency arbitrators can issue orders with respect to specific issues that need urgent attention, but they do not have jurisdiction to address the entire dispute. Typically, an emergency arbitrator may not act as arbitrator in any arbitration relating to the dispute that gave rise to the application and in respect of which the emergency arbitrator has acted unless otherwise agreed by the parties to the arbitration.
Criteria for Granting Emergency Relief
The criteria for granting emergency relief are not always expressly set out in institutional rules. The majority of arbitration rules, in fact, do not specify the standards to be applied in determining whether an application for emergency measures should be granted. The wide discretion of the emergency arbitrator thus extends to assessing not only whether relief should be granted but also to determine the standards to be applied in making that assessment. Literature and arbitration practice have established some essential criteria which arise from three main principles of emergency arbitration, notably:
- The relief cannot await the constitution of the arbitral tribunal;
- The claimant faces a risk of irreparable harm, and the balance of interests and proportionality favours preventing it;
- The claimant has a prima facie case on merits.[7]
Urgency
The central issue, which lies at the heart of emergency arbitration and is its “raison d’etre” [8], is urgency, i.e., whether the relief sought can await the constitution of the tribunal. If it can wait, emergency arbitration should not be commenced. The requesting party must, therefore, demonstrate that the situation is urgent and cannot wait for the full tribunal to be constituted. This urgency often relates to the need to prevent imminent harm or to preserve the status quo until a final decision can be made. This was also confirmed by the Report of the ICC Commission on Arbitration and ADR Task Force on Emergency Arbitrator Proceedings, which considered that “the nature of interim relief is such that it is only in exceptional cases that urgent relief is justified.”[9]
This standard of urgency has been called one of the most difficult standards to meet. Most issues can await the constitution of an arbitral tribunal. The standard of urgency is also different in emergency arbitration and in interim applications before arbitral tribunals, which makes it the core and defining feature of emergency arbitration.[10]
Prima Facie Case on the Merits
The requesting party must also demonstrate that there is at least a prima facie case on the merits, i.e., a reasonable possibility of success on the merits of the underlying claim. In other words, there should be sufficient evidence to suggest that the party has a valid claim that warrants consideration in subsequent arbitration proceedings. The emergency arbitration does not exist in a vacuum. It is not a self-standing procedure but a prelude to arbitration. For this reason, the requesting party is also required to commence arbitration on the merits, either before, simultaneously with, or within a short timeframe after the commencement of emergency arbitration.[11]
Irreparable Harm
The party seeking emergency relief must show that they will suffer “irreparable harm” if the relief is not granted. This harm must be significant enough that it cannot be adequately compensated through damages later, thus necessitating immediate action. Different terms are used, from “irreparable harm” to “immediately and irreparable loss or damage”, “harm not adequately reparable by an award of damages”, to “immediate and irreparable loss or damage”. The idea, however, is the same: the prevention of harm from which there is no going back.[12]
The degree of seriousness of harm is also one of the most controversial criteria for granting interim measures by arbitral tribunals in regular arbitration proceedings (see “Interim Measures in International Arbitration: A Need for Irreparable Harm?”). Arbitrators have applied a range of potential harms, sometimes referring to “irreparable”, “serious” or “substantial” injury necessary for the provisional measures to be granted.[13]
In the context of emergency arbitrations, the concepts of urgency and irreparable harm are closely related and considered alongside each other. For the urgency standard to be satisfied, the risk of harm needs to be such that it is likely to materialize in the period prior to the constitution of the tribunal. As commentators note, if there is no such risk of imminence of harm, then the urgency standard will not be satisfied.[14]
Proportionality and Balance of Interests
The requested relief must be proportional to the harm being prevented. The emergency arbitrator will assess whether the benefits of granting the relief outweigh any potential harm to the opposing party or other interests involved. Essentially, the principle ensures that emergency measures are appropriate, reasonable, and balanced in light of the specific circumstances.
Some arbitrators consider the balance of interests, evaluating how granting or denying relief would affect both parties involved in the dispute. Different terms are used, sometimes referred to as the “balance of equities”, the “balance of interests”, the “balance of convenience”, or the “balance of hardships”. The point is always the same – the emergency arbitrator must minimize the risk of doing injustice. This involves assessing which party would suffer more from the decision.
Most Emergency Arbitration Rules do not limit the standards for determining an application. The HKIAC Rules, for example, state that applicable standards are not limited to those specified.[15] Even when only one or two standards are cited, emergency arbitrators have the authority to issue measures they find appropriate or necessary. This grants flexibility, allowing them to consider other relevant standards as well.
Pros and Cons of Emergency Arbitration
When considering whether to seek relief through emergency arbitration, parties should carefully consider the potential benefits and drawbacks. Some key advantages of emergency arbitrations are:
- Speed and Efficiency: emergency arbitration provides a quick response to urgent situations; typically, emergency arbitrators can issue interim measures within a few days up to two weeks. This is faster than seeking court orders in certain jurisdictions (not all of them, however).[16]
- Confidentiality: the ability to maintain the confidentiality and privacy of the proceedings, which is one of the fundamental pillars of international arbitration.
- Neutrality and Impartiality: emergency arbitrations allow the parties to avoid state courts and obtain interim relief in an expedited and neutral forum.
- Flexibility: another appealing feature is the arbitrator’s flexibility in determining the criteria for granting relief since, as indicated, there are no set-in-stone criteria applied. In contrast, state courts may be more rigid.
However, emergency arbitrations also have their downsides:
- Limited Scope of Authority: emergency arbitrators have a limited scope of authority as their powers are based on the consent of the parties involved. Emergency arbitrators cannot issue orders that bind third parties or enforce measures against them. The lack of recourse it offers for a claimant against third parties or non-parties to the arbitration agreement, even if such third parties are relevant to the subject matter of the claim or the emergency relief sought, may cause problems.
- Uncertainty: the lack of specific criteria for granting emergency relief can lead to uncertainty and potentially inconsistent orders across different jurisdictions.
- Temporary Measures: emergency arbitration decisions are interim in their nature and do not constitute final awards. Once the arbitral tribunal is fully constituted, it may modify or overturn the decision.
- Enforceability: while many institutions state that emergency arbitration rulings are binding (see, e.g., SIAC Rules 2016 Schedule 1, Item 12), they do not offer clear procedures for non-compliance, leaving enforcement uncertain. There is still uncertainty regarding whether a national court would enforce the emergency arbitrator’s decision under the provisions of the New York Convention as it applies to the “recognition and enforcement of arbitral awards” (emphasis added). This very much depends on the jurisdiction in question.
- Costs: seeking urgent relief through emergency arbitration may be costly. The ICC, for instance, charges applicants USD 40,000, whereas the LCIA charges GPB 31,000.[17] While the costs of emergency arbitration are much lower than the full arbitration process, they still involve fees for the arbitrator, administrative costs, and legal fees for urgent legal advice and filings. This can be problematic for some parties, especially for smaller disputes.
Emergency arbitration provides the parties with a useful mechanism to address urgent issues in international disputes without having to resort to national courts (although the two are not mutually exclusive). It is not without its downsides, however. The practical problems mostly arise from the inherent tension between balancing the apparent urgency of the situation against the need to give the respondent sufficient opportunity to reply as part of basic due process rights. Balancing fairness and urgency is not an easy task. While emergency arbitration is designed to provide rapid relief, this must not come at the expense of due process and fairness. Arbitrators should attempt to act promptly while respecting the rights of both parties, using interim measures to protect the arbitration process without overstepping or causing undue harm. The full arbitral tribunal’s ultimate review of the emergency decision serves as an important safeguard to ensure that the final outcome is fair.
[1] For more information on “irreparable harm”, see Interim Measures In International Arbitration: A Need for Irreparable Harm?
[2] See https://siac.org.sg/emergency-arbitration.
[3] This is provided for in the 2024 HKIAC Rules, Schedule 4, Article 1: “A party requiring Emergency Relief may submit an application (the ‘Application’) for the appointment of an emergency arbitrator to HKIAC (a) before, (b) concurrent with, or (c) following the filing of a Notice of Arbitration, but prior to the constitution of the arbitral tribunal”. However, Article 21 of the HKIAC Rules provides that “[t]he Emergency Arbitrator Procedure shall be terminated if a Notice of Arbitration has not been submitted by the applicant to HKIAC within seven days of HKIAC’s receipt of the Application, unless the emergency arbitrator extends this time limit.”
[4] The HKIAC 2014 Rules, Schedule 4, Article 1.
[5] For instance, at the ICC, this is the President of the ICC Court of Arbitration; at the LCIA, the LCIA Court; at the SIAC, the President of the Court of Arbitration of the SIAC; at the SCC, the SCC Board.
[6] Pursuant to the ICC Rules, the order shall be made no later than 15 days from the date on which the file was transferred to the emergency arbitrator (ICC Rules, Appendix V, Article 6(4)); under the LCIA Rules, within 14 days following the appointment (LCIA Rules, Article 9.8); under the SIAC Rules, 14 days as of the appointment of the emergency arbitrator; under the SCC Rules, within 5 days from the referral of the application to the emergency arbitrator (Appendix II, Article 8); under the HKIAC Rules, within 14 days from the date of the transmission of the file to the emergency arbitrator (Schedule 4, Article 12); under the Swiss Rules, within 15 days (Article 43(7)).
[7] C. Sim, Emergency Arbitration (2021), p. 223, para. 7.02.
[8] C. Sim, Emergency Arbitration (2021), p. 223, para. 7.05.
[9] Commission on Arbitration and ADR, Emergency Arbitrator Proceedings (April 2019), ICC Dispute Resolution Library, p. 4, para. 8; see ICC Emergency Arbitration.
[10] C. Sim, Emergency Arbitration (2021), p. 233, para. 7.40.
[11] C. Sim, Emergency Arbitration (2021), p. 249, para. 7.98.
[12] C. Sim, Emergency Arbitration (2021), p. 226, para. 7.15.
[13] Gary Born, International Commercial Arbitration (Kluwer International Law 2014), p. 2469.
[14] C. Sim, Emergency Arbitration (2021), p. 240, para. 7.70.
[15] The HKIAC Rules, Article 23.4.
[16] Although the procedure is rapid, in some cases, it can take up to two weeks, whereas in some jurisdictions, such as in the US, Singapore, and Hong Kong, courts may grant interim relief within a few days. While the timelines are relatively fast compared to traditional arbitration processes, they may still take longer than expected in urgent situations due to procedural formalities and the need for both parties to be heard.
[17] At the SCC, the costs of the emergency proceedings include (i) the fee of the emergency arbitrator, in the amount of EUR 16,000; (ii) the application fee of EUR 4,000 (Appendix II, Article 10); at the SIAC, the applicant needs to pay a non-refundable application fee of SGD 5,350 (inclusive of 7% GST) for Singapore parties, or SGD 5,000 for overseas parties; the deposits towards the Emergency Arbitrator’s fees and expenses are fixed at SGD 30,000 unless the Registrar determines otherwise (the Emergency Arbitrator’s fees are fixed at SGD 25,000 unless the Registrar determines otherwise).