The Emergency Arbitrator Procedure under the 2012 ICC Rules: A Juridical Analysis

Abstract

This article examines the International Chamber of Commerce (ICC's) Emergency Arbitrator procedure as provided by the 2012 ICC Rules. Emergency arbitration procedures are relatively new creatures, and their increasing prevalence signifies their importance. The ICC Emergency procedure raises important, potentially novel, doctrinal questions which touch on the very nature of arbitration: can or should an Emergency Arbitrator be properly described as an arbitrator? How does the jurisdiction of the Emergency Arbitrator interact with the jurisdiction of the court and the arbitral tribunal? These questions become of immense practical import in the context of enforcement. This article analyses the specific provisions of the ICC Emergency Arbitrator procedure and seeks to anticipate the way in which existing arbitration statutes, case law and conventions might perceive the orders of an ICC Emergency Arbitrator. It is the view of this author that, on close analysis, the ICC Emergency procedure cannot and should not be properly described as arbitration in the traditional sense. The parties who sign up for the new ICC Rules intend for the ICC Emergency procedure to be a sui generis contractual creature which shares many similarities with the 1990 ICC Pre-Arbitral Referee, albeit in a new packaging and using different labels.