Studies On Emergency Arbitrator Procedure

In recent years,main arbitral institutions in the world have incorporated emergency arbitrator procedure constantly which provides one party with necessary remedial measures before constitution of arbitral tribunal,in order to avoid suffering irreparable losses arising from another party's malicious acts.Practically speaking,emergency arbitrator procedure is in the course of development,it is still not compatible with existing international convention and most countries' arbitration law,pertinent legal issues also have not got reasonable identifications.In this basis,this article primarily discusses the cause for creating emergency arbitrator procedure;the attribute and power limit of emergency arbitrator;the application condition and procedural guarantee of emergency arbitrator procedure;the enforceability of emergency arbitration award.Based on those above,some comparative studies have been done towards the differences and similarities between domestic and extra-territorial emergency arbitrator procedure,concrete suggestions to revise domestic related laws have also been given,for the purpose of realizing the function of emergency arbitrator procedure to the most extent.The cause for creating emergency arbitrator procedure stems from three aspects,the first is court's inadequacy in offering emergency remedy,such as non-impartiality,non-specialization,low procedural efficiency;the second is the length of constitution of arbitral tribunal is not suitable for emergency situation;The third is the internal advantages of emergency arbitrator procedure are efficiency,flexibility,impartiality,specialization which could effectively solve the special remedial problems before arbitration procedure.The power limit of emergency arbitrator could refer to the arbitral tribunal's power limit which is entitled to release any necessary or appropriate emergency remedial measures.The procedural guarantee of emergency arbitrator procedure mainly aims to ensure it in adherence to minimum standard of due process,namely requiring fulfilling all necessary procedural steps in a short time period,in order to effectively protect the respondent's procedural rights.The attribute of emergency arbitrator belongs to arbitrator,rather than the third party outside the case,main reasons are that emergency arbitration rules have been incorporated into arbitration rules,in addition,it can also prove its judicial attributes from the perspectives of emergency arbitrator's means of appointing,power limit and requirement of impartiality and fairness,and other factors.The application condition of emergency arbitrator procedure can refer to those conditions arbitral tribunal apply:prima facie jurisdiction,reasonable possibility of success in merits,emergency situation,insufficient damages for compensation,principle of proportionality,but it should place more emphasis on emergency situation and interest guarantee.The enforceability of emergency arbitration award is associated with this procedure's ultimate purpose.Its form can't determine its finality,whatever "award"or "order",ordinarily the "merit over form approach" is widely adopted to identify finality in international sphere.The internal content of finality is always directed to substantive matters originally,instead of procedural matters,but a few courts in US take the view from functional orientation of interim measure,its meaning for arbitral procedural integrity and guarantee for parties'interests which provides a new pathway to identification of the enforceability of emergency arbitration award.The 2006 UNCITRAL model law and some countries' law have recognized the enforceability of interim measure which also provides legal bases for enforcing emergency arbitration award.China has four arbitral institutions which have already incorporated emergency arbitrator procedure so far,its content and form is roughly identical to extra-territorial emergency arbitration rules,but some differences are also existing.Domestic emergency arbitrator procedure is subject to civil procedural law and arbitration law,primarily from six facets,like subject in deciding emergency application,subject in deciding emergency measures,application time limits for emergency procedure,scope of emergency arbitration award,guarantee for emergency procedure,execution of emergency measure,security of emergency procedure and enforcement of emergency arbitration award,thus it could only play a limited role in practice.In order to fulfill the inherent value of emergency arbitrator procedure,this article considers it should be improved from many issues,for example,granting arbitral tribunal decisional power in interim measure,expanding the scope of interim measures,taking example by the enforcement rules of the 2006 UNCITRAL model law and so on.