On The Application And Enforceability Of The Decision Made By Emergency Arbitrator

Emergency arbitrator procedures("EAPs") are developed in order to fill a void in arbitral rules that did not provide for emergency relief or protective measures before formal referral to arbitration or the formation of the arbitral tribunal, or the handing down of an interim or final award. Before the introduction of EAPs, parties often had three options, none of which were ideal: urgent relief from local courts pending the formation of the tribunal; an application for an interim award once the tribunal was formed; or a pre-referral procedure available under certain rules(for examples under the ICC Rules).However, there was no procedure for applications upon an emergency basis before the referral to arbitration, or before the formation of the tribunal. This was particularly problematic when it was necessary to apply for, or to enforce, interim or injunctive relief in a jurisdiction with a court system that has a poor track record of granting such relief. The new EAPs introduced into certain institutional rules remedy those issues by offering a mechanism for an emergency arbitrator(―EA‖), appointed independently from the tribunal, to award relief on an urgent and interim basis by handing down an EA’s award or order. As a result, EAPs serve to limit dependency upon the court system.In recent years, several arbitral tribunals, including The International Chamber of Commerce(ICC), The Arbitration Institute of the Stockholm Chamber of Commerce, Singapore International Arbitration Centre(SIAC), The International Centre for Dispute Resolution(ICDR), Hong Kong International Arbitration Center(HKIAC) and China International Economic and Trade Arbitration Commission(CIETAC), have introduced EAPs into their respective arbitration rules. Statistics released by the ICC and SIAC have shown a gradual increase in the number of parties seeking to use EAPs since their introduction in those jurisdictions. Those statistics also highlight that EAPs are being used in disputes of varying values and to seek a variety of interim measures. Most recently, at the beginning of 2015, the CIETAC published its new arbitration rules, in final form, which introduce a mechanism for the appointment of an EA before the formation of the arbitral tribunal and will apply to arbitrations commenced after 1 January 2015.As a method which is obliged to issue interim measures before the formation of the arbitral tribunal, the fundamental problem of emergency arbitrator procedural is the availability of enforcement. There are still a lot of controversies between the puzzle that if decisions made by emergency arbitrators could be viewed as a final award or if it has enforceability. In China, it seems that the enforceability of the decisions made by emergency arbitrator is more complex since there are some contradictions between the advanced rule and our conservative arbitral law system.However, even though several arbitral tribunals in China such as CIETAC tries to add Emergency Arbitrator procedural into their rules of arbitration, we should admire that, just as the saying goes, Orange is orange, born in huainan is born in huaibei empirically. In one hand, arbitral tribunals should put emphasis on the construction of EAPs, in another hand, our government and tribunals should pay attention to optimize the law system relevant to interim measures, only by this could EAPS be a valuable arbitral procedural in China.