ICC emergency arbitration offers parties an alternative to state courts' jurisdiction in seeking interim or conservatory relief. This procedure was introduced in 2012 with Article 29 of the ICC Rules and Appendix V. 1 The emergency arbitration provisions apply by default to arbitration agreements concluded after 1 January 2012 unless the parties have opted out. 2 The cost of emergency arbitration is currently USD 40,000 pursuant to Article 7 of Appendix V of the ICC Rules, with USD 10,000 being paid for ICC administrative expenses and USD 30,000 for the emergency arbitrator's fees.
The particularity of these very swift proceedings is that the interim measures sought are granted by an emergency arbitrator prior to the constitution of the arbitral tribunal. A key provision, therefore, when seeking emergency measures is that the requested relief is so urgent that it "cannot await the constitution of the arbitral tribunal". 3 The ICC Rules on emergency arbitration are thus perceived as filling a previous "gap", i.e., the absence of relief during the period of time prior to the constitution and transmission of the case file to the arbitral tribunal. 4
Procedure – General Rules
For a party to succeed in emergency arbitration proceedings, in addition to jurisdictional requirements, a number of substantive standards must be met. In terms of jurisdiction, when receiving an application for emergency relief, the President of the International Court of Arbitration (the President) first, then the emergency arbitrator, will assess whether the emergency arbitrator provisions apply with reference to Article 29(5) and Article 29(6) of the ICC Rules. 5
The procedure is extremely fast. In fact, once an application for emergency relief is received by the Secretariat of the ICC, and the President has, prima facie, determined that emergency arbitration provisions apply, the President appoints the emergency arbitrator "within as short time as possible, normally within two days from the Secretariat's receipt of the Application". 6
The emergency arbitrator's decision then takes the form of an order and must be issued no later than 15 days from the date on which the file was transmitted to the emergency arbitrator. 7 The order, however, is not an arbitral award, which can raise issues at the enforcement stage in some jurisdictions. 8
Finally, the applicant must file a request for arbitration within 10 days of the Secretariat's receipt of its application for emergency measures. Otherwise, the President must terminate the emergency arbitration proceedings unless the emergency arbitrator determines that a longer period of time is necessary. 9
Regarding the substantive requirements, in addition to urgency, according to literature and arbitral practice, the same requirements as under Article 28 of the ICC Rules allowing the tribunal, once constituted, to order any "interim or conservatory measures it deems appropriate" apply. 10 These are typically the following, which are, nonetheless, non-cumulative: 11
- the likelihood of success on the merits;
- the risk of irreparable harm;
- the risk of aggravation of the dispute;
- the absence of prejudgment of the case on the merits;
- the proportionality test/balance of equities of the interests at stake.
The difference between Articles 28 and 29 of the ICC Rules, therefore, resides in the "special degree of urgency" differentiating mere interim relief from emergency relief. 12
A Special Degree of Urgency
The test for emergency measures is whether "urgent interim or conservatory measures [...] cannot await the constitution of an arbitral tribunal", as provided under Article29 of the ICC Rules. 13 A high threshold and immediate urgency are required when assessing urgency under Article 29(1) of the ICC Rules. 14
This key requirement for emergency arbitration proceedings was confirmed by the Report of the ICC Commission on Arbitration and ADR Task Force on Emergency Arbitrator Proceedings (the ICC Task Force), which reviewed 80 applications for emergency measures between 2012 and 2018 and considered that "the nature of interim relief is such that it is only in exceptional cases that urgent relief is justified." 15
Therefore, only in exceptional circumstances, where truly urgent relief is sought, will a party be entitled to the relief provided under emergency arbitration proceedings. In fact, an author notes that "[i]f the emergency arbitrator were to grant relief irrespective of whether the measures sought could await tribunal formation, the emergency arbitrator would be usurping the role of the arbitral tribunal." 16 The rule, therefore, remains that interim relief is ordered by the tribunal itself under Article 28(1) of the ICC Rules once it is constituted. The different meaning of urgency in emergency arbitration proceedings and in interim measures applications before arbitral tribunals is, accordingly, "the defining feature of emergency arbitration". 17
In practice, however, the "specific urgency" 18 requirement has proven difficult to apply, and tribunals most often will approach urgency alongside other standards, such as the irreparable harm that the applicant is likely to suffer in the absence of relief.
The Likelihood of Success on the Merits
In addition to showing urgency, the applicant to an emergency arbitration should convince the emergency arbitrator that it has aprima faciecase on the merits. 19 This is a well-known criterion for interim measures before arbitral tribunals. It requires the requesting party to demonstrate that it has an arguable case or a "reasonable probability of prevailing on the merits". 20 In so doing, the emergency arbitrator will consider the parties' respective claims and defences and accordingly decide whether to grant the relief sought. 21 Otherwise, if the arbitral tribunal ultimately dismisses the applicant's claims, it would be counterproductive for emergency relief to have been granted in the first place. 22
In the 80 applications for emergency relief reviewed by the ICC Task Force, at least 31 considered the likelihood of success on the merits. 23 After urgency, this seems to be the most commonly applied criterion in ICC emergency arbitration practice, along with the risk of irreparable harm. 24
The Risk of Irreparable Harm
The risk of imminent or irreparable harm is very much a requirement for interim or conservatory relief and, therefore, for emergency relief as well. 25 This kind of harm is usually defined as one which cannot be compensated by a damages award. 26 This consists of assessing whether damages would be an inadequate remedy because the harm that would be suffered in the absence of relief could not be repaired through an award of damages, even if compensation were available. 27
Some arbitral awards, however, have considered that the "standard is not so high as to require harm that cannot be compensated by money but rather that the harm will alter the status quo significantly and compound the damages". 28 Similarly, "a risk of serious or substantial harm may be sufficient, depending on the circumstances" of each case. 29 The risk of harm should, therefore, at least be serious and imminent, "tipping the balance in favour of the requesting party." 30
Again, therefore, no consensus exists between these different approaches, which remain mainly fact-specific. In any event, in the 80 cases analysed by the ICC Task Force, half of them considered the irreparable harm standard. 31
The Risk of Aggravation of the Dispute
The risk of aggravation of a dispute is a reference to whether the grant or refusal of the relief sought would aggravate the dispute and aims at preserving the parties from suffering further damages. 32
In one ICC case, this criterion was applied alone and, despite the absence of the risk of irreparable harm, the emergency arbitrator granted the relief sought. 33 In most cases, however, it is applied in conjunction with other standards. 34
The Absence of Prejudgment of the Case on the Merits
Articles 29(3) and 29(4) of the ICC Rules recognise that the arbitral tribunal is the ultimate decision-making authority and that the emergency arbitrator's order shall not bind the arbitral tribunal. 35
Thus, although the emergency arbitrator must estimate the chances of success of the claim on the merits, it must not "overstep the arbitral tribunal's role of assessing the merits". 36
In one of the cases reviewed by the ICC Task Force, the emergency arbitrator held that "[i]t is not the function of an emergency arbitrator [...] to decide the merits of the parties' respective cases, particularly where such cases are, necessarily, materially incomplete and turn on complicated and potentially difficult issues of law." 37
In another case reviewed by the ICC Task Force, the emergency arbitrator rejected the request for emergency relief given the risk of prejudging the case's merits as some issues raised depended on a "deeper debate", which was inappropriate for an emergency arbitration proceeding. 38
The Proportionality or the Balance of Equities Test
When assessing an application for emergency measures, the emergency arbitrator may also conduct a proportionality or "balance of equities" test. 39
This requires the emergency arbitrator to weigh the potential harm the applicant and the respondent are likely to suffer if the relief sought is granted or refused, i.e., the "harm which would be avoided through the imposition of relief against the potential harm which the respondent might suffer as a result of that imposition." 40
As a commentator notes, when conducting this balancing test, emergency arbitrators should, inter alia, consider whether the application appears as "a form of abuse", as "interim measures may occasionally be diverted from their legitimate ends in order to exert pressure on the opposing side in an attempt to extract undue concessions". 41 The emergency arbitrator should, therefore, contemplate the true purpose behind the requested measures. 42
Finally, emergency arbitrators can also estimate the parties' respective financial positions in order to render a commercially sensible decision. 43
Conclusion
ICC emergency arbitration is an exceptional tool at the disposal of the parties; it is, however, rarely granted by arbitrators. The urgency requirement, central to an application for emergency relief, has been characterised as one of "the most difficult standard[s] to meet". 44 Most applications for emergency measures are rejected on this ground.
Footnotes
1. Commission on Arbitration and ADR,Emergency Arbitrator Proceedings(April 2019), ICC Dispute Resolution Library, p. 3, para. 2.
2. 2021 ICC Rules (ICC Rules), Article 29(6).
3. ICC Rules, Article 29(1).
4. J. Fry, S. Greenberg, F. Mazza,The Secretariat's Guide to ICC Arbitration(2012), p. 294, para. 3-1051; ICC Rules, Articles 16 and 28(1).
5. Appendix V to the ICC Rules (Emergency Rules), Article 1(5).
6. Emergency Rules, Article 2(1).
7. ICC Rules, Article 29(2) and Emergency Rules, Article 6(1) and (4).
8. Commission on Arbitration and ADR,Emergency Arbitrator Proceedings(April 2019), ICC Dispute Resolution Library, p. 31, paras. 192-194.
9. Emergency Rules, Article 1(6).
10. T. Webster, M. Bühler,Handbook of ICC Arbitration: Commentary and Materials(5thedn., 2021), para.29-19; Commission on Arbitration and ADR,Emergency Arbitrator Proceedings(April 2019), ICC Dispute Resolution Library, p. 6, para. 33; ICC Rules, C. Sim,Emergency Arbitration(2021), p. 230, para. 7.27; Article 28(1).
11. C. Sim,Emergency Arbitration(2021), p. 230, para. 7.28.
[12. T. Webster, M. Bühler,Handbook of ICC Arbitration: Commentary and Materials(5thedn., 2021), para.29-70.
13. ICC Rules, Article 29(1).
14. Commission on Arbitration and ADR,Emergency Arbitrator Proceedings(April 2019), ICC Dispute Resolution Library, p. 24, para. 148.
15. Commission on Arbitration and ADR,Emergency Arbitrator Proceedings(April 2019), ICC Dispute Resolution Library, p. 4, para. 8.
16. C. Sim,Emergency Arbitration(2021), p. 233, para. 7.39.
17. C. Sim,Emergency Arbitration(2021), p. 233, para. 7.40.
18. T. Webster, M. Bühler,Handbook of ICC Arbitration: Commentary and Materials(5thedn., 2021), para. 29-19.
19. Commission on Arbitration and ADR,Emergency Arbitrator Proceedings(April 2019), ICC Dispute Resolution Library, p. 25, para. 152.
20. Commission on Arbitration and ADR,Emergency Arbitrator Proceedings(April 2019), ICC Dispute Resolution Library, p. 25, para. 152.
21. G. Born,International Commercial Arbitration, (3rdedn., 2021), p. 23.
22. C. Sim,Emergency Arbitration(2021), p. 249, para. 7.99.
23. Commission on Arbitration and ADR,Emergency Arbitrator Proceedings(April 2019), ICC Dispute Resolution Library, p. 25, para. 153.
24. Commission on Arbitration and ADR,Emergency Arbitrator Proceedings(April 2019), ICC Dispute Resolution Library, p. 25, para. 152.
25. T. Webster, M. Bühler,Handbook of ICC Arbitration: Commentary and Materials(5thedn., 2021), para. 29-19; Commission on Arbitration and ADR,Emergency Arbitrator Proceedings(April 2019), ICC Dispute Resolution Library, p. 25, para. 151; C. Sim,Emergency Arbitration(2021), p. 244, para. 7.81.
26. T. Webster, M. Bühler,Handbook of ICC Arbitration: Commentary and Materials(5thedn, 2021), para. 28.27 (d); C. Sim,Emergency Arbitration(2021), p. 244, para. 7.82.
27. C. Sim,Emergency Arbitration(2021), p. 244, para. 7.83.
28. Commission on Arbitration and ADR,Emergency Arbitrator Proceedings(April 2019), ICC Dispute Resolution Library, p. 26, footnote 108.
29.Commission on Arbitration and ADR,Emergency Arbitrator Proceedings(April 2019), ICC Dispute Resolution Library, p. 26, footnote 108.
30. Commission on Arbitration and ADR,Emergency Arbitrator Proceedings(April 2019), ICC Dispute Resolution Library, p. 26, para. 158.
31. Commission on Arbitration and ADR,Emergency Arbitrator Proceedings(April 2019), ICC Dispute Resolution Library, p. 26, para. 158.
32. Commission on Arbitration and ADR,Emergency Arbitrator Proceedings(April 2019), ICC Dispute Resolution Library, p. 26, para. 160.
33. Commission on Arbitration and ADR,Emergency Arbitrator Proceedings(April 2019), ICC Dispute Resolution Library, p. 26, para. 161.
34. Commission on Arbitration and ADR,Emergency Arbitrator Proceedings(April 2019), ICC Dispute Resolution Library, p. 26, para. 161.
35. ICC Rules, Articles 29(3) and 29(4); J. Fry, S. Greenberg, F. Mazza,The Secretariat's Guide to ICC Arbitration(2012), p. 305, para. 3-1088.
36. Commission on Arbitration and ADR,Emergency Arbitrator Proceedings(April 2019), ICC Dispute Resolution Library, p. 27, para. 163.
37. Commission on Arbitration and ADR,Emergency Arbitrator Proceedings(April 2019), ICC Dispute Resolution Library, p. 27, para. 165.
38. Commission on Arbitration and ADR,Emergency Arbitrator Proceedings(April 2019), ICC Dispute Resolution Library, p. 25, para. 154.
39. T. Webster, M. Bühler,Handbook of ICC Arbitration: Commentary and Materials(5thedn., 2021), para. 29-19; Commission on Arbitration and ADR,Emergency Arbitrator Proceedings(April 2019), ICC Dispute Resolution Library, p. 25, para. 151.
40. C. Sim,Emergency Arbitration(2021), p. 257, para. 7.128 and p. 258, para. 7.131.
41. C. Sim,Emergency Arbitration(2021), p. 260, para. 7.138.
42. C. Sim,Emergency Arbitration(2021), p. 260, para. 7.138.
43. Commission on Arbitration and ADR,Emergency Arbitrator Proceedings(April 2019), ICC Dispute Resolution Library, p. 27, para. 166.
44. C. Sim,Emergency Arbitration(2021), p. 233, para. 7.41.
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