together… in partnership

Emergency Arbitrator

Tan Sri Cecil Abraham ZUL RAFIQUE & partners

EMERGENCY ARBITRATOR (“EA”)

§ Arbitral institutions, in an endeavour to improve the practical benefits and functioning of their rules have developed expedited or emergency procedures to assist parties when they need urgent interim relief, before an arbitral tribunal has been constituted.

§ Prior to this, parties would have to resort to the national courts or await the constitution of the tribunal.

B) ICC EMERGENCY ARBITRATION RULES

§ COF: 1 January 2012

§ Article 29 + Appendix V: Procedure for interim and conservatory relief

COURT

Gen: Urgent need for interim relief à National Courts

§ Not attractive. Why?ØTime consumingØSlowØNo confidence in the judiciary

SOLUTION?

Article 29 + Appendix V§ Appointment of an emergency arbitrator to

issue orders concerning interim or conservatory measures “that cannot await the constitution of an arbitral tribunal”.

Article

§ Set out the material, basic facts(In certain cases you may have to make assumptions)

§ List the legal issues that arise

§ Set out briefly the applicable legal principles…Apply the legal principles to the facts

§ Incorporate, where necessary, fresh cases to deal withfactual permutations

§ Conclusion

Main Features

of the Procedure

Opt-out provision

Availability of the

procedure

Timetable

State Courts and

other options

1) Opt-out provision

§ 1990: Pre-Arbitral Referee Procedure: Expressly stated in contracts

§ New Rules: EA procedure automatically applies

§ Must opt-out

2) Availability of the Procedure

§ Procedure available immediately and may be invoked before Request for Arbitration is filed

§ Reason?ØSituation is urgentØCannot await the constitution of the tribunal

§ If application made before Request for Arbitration, ØRequest filed within 10 daysØFailure: emergency procedure comes to an end

3) Timetable

§ Articles 2(1) and 6(4) of Appendix V – Deadlines to deal with emergency proceduresØArticle 2(2): EA appointed by the President of the

Court no later than 2 days from application ØEA makes an order no later than 15 days from the

receipt of the fileØTime limit may be extendedØSee Article 6(4)

4) State Courts and other options

§ Articles 29(6) and (7) – Additional remedyØParties not precluded from resorting to

state courts; orØUse some other procedure to seek interim

measuresØProcedure not compulsory

PROCESS

§ Emergency relief within 15 days of the transmission of the file to the arbitrator

APPLICATION

§ Sent to ICC Secretariat § Contents of applicationØ Set out in Appendix V, Article 1(3)Ø Full details of claim and relief sought

§ CostsØ USD10k = ICC administrative expensesØ USD30k = Arbitrator’s fees and expenses [Appendix

V, Article 7(1)]§ If POC satisfied EA provisions apply à copy sent to

respondent

APPOINTMENT OF ARBITRATOR

§ President to appoint arbitrator promptlyØNormally within 2 days of application [Appendix

V, Article 2(1)]ØArbitrator – impartial and independent [Appendix

V, Articles 2(3) and (4)]

TIMETABLE

§ Establish procedural timetable within 2 days on receipt of file

§ Expeditious manner

§ Appendix V, Article 5(1)

CHALLENGES

§ Within 3 days on receipt of notice of appointment

§ ICC Secretariat to ascertain views of applicant and arbitrator before challenge is decided upon by the ICC Court [Appendix V, Article 3(1)]

REQUEST FOR ARBITRATION

§ File a Request for Arbitration within 10 days of the Application

§ Failure à Termination of Procedure

§ Appendix V, Article 1(6)

ISSUANCE OF ORDER

§ Reasoned decision (Order) in writing no later than 15 days from receipt of file

§ Extension of time: President of the ICC Court [Appendix V, Article 6(3) and (4)]

§ Order of arbitrator binding until arbitral tribunal makes final award/varies order [Article 29(3) and Appendix V, Article 6(6)]

EFFECTIVENESS OF THE PROCEDURE

§ Does not apply to third parties§ Binds signatories to the Arbitration Act [Article

29(5)]. Therefore an Order against a bank cannot be made by the arbitrator.

§ Necessary to get Order from the Court§ Application made inter-partes - no element of

surprise.§ If Mareva Injunction intended, emergency

procedure not suitable.

ENFORCEABILITY

§ Order is not an Award§ Issue: Enforceability§ Not enforceable under New York Convention§ Countries with emergency arbitrator provisions

amended their Arbitration Acts to allow enforceabilityØe.g. Singapore: Amended International

Arbitration ActØ Same status = regularly constituted arbitral

tribunal.

CONCLUSION

§ Intention: Applicant to secure interim relief within 15 days of the Application.

§ There are limits to enforcement but it has become an important tool in international arbitration.

THANK YOU

Tan Sri Cecil AbrahamSenior Partner

Dispute Resolution ZUL RAFIQUE & partners

Tel 603-6209 8228Fax 603-6209 8221