The emergency arbitrator: a full-fledged arbitrator rendering an enforceable decision?

Abstract

Emergency procedures are becoming increasingly popular in international arbitration. Their effectiveness is however disputed, there being uncertainty as to both the proper status of the subject granting emergency relief—so called emergency arbitrator—and the enforceability of his decisions. This contribution aims at shedding light on the above-mentioned issues. To this end, it first describes the general procedural framework in which emergency procedures are carried out. It then delves into the questions of what the proper status of an emergency arbitrator is and whether emergency decisions are capable of being enforced by state courts, suggesting that the emergency arbitrator is a full-fledged arbitrator rendering decisions that may enjoy (at least a certain degree of) enforceability. Finally, it puts forward a proposal for an international instrument on recognition and enforcement of arbitral interim measures, including emergency decisions, which may enhance their effectiveness. (New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) Hong Kong Arbitration Ordinance (2013) Singapore International Arbitration Act (2012) ICC (International Chamber of Commerce) Arbitration Rules (2012) LCIA (London Court of International Arbitration) Arbitration Rules (2014) ICDR (International Centre for Dispute Resolution) Arbitration Rules (2009) SCC (Stockholm Chamber of Commerce) Arbitration Rules (2010) SIAC (Singapore International Arbitration Centre) Arbitration Rules (2013) HKIAC (Hong Kong International Arbitration Centre) Arbitration Rules (2013) NAI (Netherlands Arbitration Institute) Arbitration Rules (2010) Yahoo! v Microsoft, US District Court (SDNY) (2013) Total Fina Elf E&P Congo c Société Nationale des Pétroles du Congo et République du Congo, Cour d’appel de Paris (2003) Swiss Code of Private International Law (1987) English Arbitration Act (1996) Dutch Arbitration Act, Code of Civil Procedure, Book IV (1986) [Wetboek van Burgerlijke Rechtsvordering]