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EMERGENCY ARBITRATOR RULES Jason Fry Secretary General, ICC International Court of Arbitration 27 March 2012 - Santiago.

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Presentation on theme: "EMERGENCY ARBITRATOR RULES Jason Fry Secretary General, ICC International Court of Arbitration 27 March 2012 - Santiago."— Presentation transcript:

1 EMERGENCY ARBITRATOR RULES Jason Fry Secretary General, ICC International Court of Arbitration 27 March Santiago

2 INTERNATIONAL COURT OF ARBITRATION® EA rules: ICCpre-arbitral referee rules 1990 ICDRArticle 37 ICDR Rules1 May 2006 SCCEmergency Arbitrator Rules1 January 2010 SIACEmergency Arbitrator Rules1 July 2010 ACICAEmergency Arbitrator Rules1 August 2011 ICCEmergency Arbitrator Rules1 January 2012 WHAT ARE THE VARIOUS EA RULES AVAILABLE? Insert date with 'Insert - Header & Footer' Insert footer text by selecting 'Insert - Header & Footer'1

3 INTERNATIONAL COURT OF ARBITRATION® EXPERIENCE TO DATE - DURATION OF THE PROCEEDINGS ICC ‘s9 th Annual Miami Conference 2 SCC had received four applications by the end of the Arbitrators were appointed by the institution within 24 hours in each case. Two cases were decided within 5 days, another within 6 days. The first of the four cases was decided in 12 days. ICDR had received fourteen applications by the spring of The average time from filing to issue of the interim order was 21 days. SIAC has received five applications. Arbitrators were appointed by the institution within 24 hours in each case. The first case was decided in 10 days.

4 INTERNATIONAL COURT OF ARBITRATION® EXPERIENCE TO DATE - OUTCOME OF THE EMERGENCY ARBITRATION ICC ‘s9 th Annual Miami Conference 3 SCC of the four applications, three were rejected by the EA and one of them resulted in granting of relief to a party, the decision was compiled with voluntarily. ICDR of the fourteen applications, eleven resulted in interim ‘awards’. In the other cases, one was withdrawn, one settled, and one was pending at the time of inquiry. SIAC of the five cases, three resulted in a settlement, one voluntary compliance and two unknown.

5 INTERNATIONAL COURT OF ARBITRATION® ICC EMERGENCY ARBITRATOR RULES 2012 ICC Rules of Arbitration, Montreal and Toronto, September  Relevant provisions of the Rules: Article 29 and Appendix V  A party that needs urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal (“Emergency Measures”) may make an application for such measures pursuant to the Emergency Arbitrator Rules;  Requirement of urgency. Party cannot await the constitution of the arbitral tribunal. 29(1)  The Emergency Arbitrator Rules are only available to parties which are either signatories of the arbitration agreement under the Rules that is relied upon for the application, or successors to such signatories. 29(5)

6 INTERNATIONAL COURT OF ARBITRATION® The Emergency Arbitrator Provisions shall not apply (Article 29(6)) If:  the arbitration agreement under the Rules was concluded before the effective date of the Rules;  the parties have agreed to opt out of the Emergency Arbitrator Provisions; or  the parties have agreed to another pre-arbitral procedure that provides for the granting of conservatory, interim or similar measures (e.g. a Dispute Board or the Pre-Arbitral Referee Rules).  The President must be satisfied on the basis of the application that the Emergency Arbitration provision apply with reference to Articles 29(5) and 29(6) i.e. that the parties are signatories and that the exclusions in Article 29(6) do not apply Appendix V, Article 1(5) ICC EMERGENCY ARBITRATOR RULES Insert date with 'Insert - Header & Footer' Insert footer text by selecting 'Insert - Header & Footer'5

7 INTERNATIONAL COURT OF ARBITRATION® 2012 ICC Rules of Arbitration, Montreal and Toronto, September  Emergency Arbitrator (“EA”) appointed normally within two days of receipt of the application.  Request for Arbitration must be filed within 10 days of receipt of the application for EM or President of the Court shall terminate the proceeding. EA may extend this period.  EA must make Order no later than 15 days after the date on which the file was transmitted to the EA. Appointment within 2 days Arbitration to be commenced within 10 days Order to be made within 15 days of transmission of file

8 INTERNATIONAL COURT OF ARBITRATION®  The Order must be in writing and reasoned.  The parties undertake to comply with any Order made by the EA (rules do not describe the decision as an “Award”).  The EA's order does not bind the arbitral tribunal. The arbitral tribunal may modify, terminate or annul the order.  The Order ceases to be binding: o President terminates the proceedings pursuant to Appendix 5, Article 1(6). o acceptance by the Court of a challenge against the EA o the arbitral tribunal’s final award o withdrawal of all claims or the termination of the arbitration ICC EMERGENCY ARBITRATOR RULES Insert date with 'Insert - Header & Footer' Insert footer text by selecting 'Insert - Header & Footer'7

9 INTERNATIONAL COURT OF ARBITRATION®  The Emergency Arbitrator Provisions are not intended to prevent any party from seeking urgent interim or conservatory measures from a competent judicial authority at any time prior to making such an application.  Any application for such measures from a competent judicial authority shall not be deemed to be an infringement or a waiver of the arbitration agreement. Article 29(7) RELIEF FROM A COURT Insert date with 'Insert - Header & Footer' Insert footer text by selecting 'Insert - Header & Footer'8

10 INTERNATIONAL COURT OF ARBITRATION® WHAT IS AN EMERGENCY ARBITRATOR? Insert date with 'Insert - Header & Footer' Insert footer text by selecting 'Insert - Header & Footer'9


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