A Study On The Application Of Emergency Arbitrators In International Investment Arbitration

The Emergency Arbitrators system(EA system)originates from the practice of international commercial arbitration and is first introduced in International Centre for Dispute Resolution(ICDR)in 2006,is introduced in the major arbitral institutions soon after.The EA system has been perfected in the field of international commercial arbitration theory and practice over ten years.It changed the singularity situation that a party has to apply for interim relief in domestic court before the constitution of the arbitral tribunal.It perfected the right of parties to obtain interim relief before the constitution of the tribunal.But the EA system is now being put to use in investment arbitration cases.Only The Stockholm Chamber Of Commerce(SCC),Singapore International Arbitration Centre(SIAC)and China International Economic and Trade Arbitration(CIETAC)provide rules about EA system in international investment arbitration definitely.some potential problems have already been revealed in documented cases of emergency interim relief in the international investment arbitration context.The article is aimed at providing suggestions for these problems and perfecting EA system in China.The article consists of four parts.The first part is a brief introduction of EA system.It includes the EA system ‘s notion,characteristics,emergence and development background,and operation pattern.This part points out that it is necessary for tribunal to share domestic court ‘s power in applying for interim relief before the appointment of the tribunal.This part highlights the high efficiency in the procedure of applying a EA and making decisions,the universality of EA's powers,the controversy of emergency decisions made by a EA.The second part is the current situation and controversy of the EA system in international investment arbitration.ICC,SCC,SIAC and CIETAC have different regulations on theory.At the practical level,From the documented cases of applying EA system to international investment arbitration,the article summarizes and analyses problems and obstacles in application.The second section points out the disputes in the SCC in applying a EA in investment arbitration cases by Moldova case,the Poland case and the Ukraine case.The third part analyses some problems that has revealed in investment arbitration,and discusses national response.Including Cooling-off Periods,Temporal Application of EA Provisions,Most-Favoured Nation Clauses in Investment Treaties and Enforcement Issues.it will discuss the differences and connections between “cooling-off periods” and exhaustion of local remedies,point out the “cooling-off periods” are not an obstacle in applying for an emergency arbitrator.It will discuss how to determine the applicable version of the arbitration rule,the applicability of the “most favored nation clause” in the emergency arbitrator system and the common enforcement issues and special enforcement obstacles in international investment arbitration.It also points out a emergency arbitrator should be cautious about the applicability of the “most favored nation clause”.The fourth part is the perfection of EA system in China.It includes application situation of EA system and specific suggestions.China(shanghai)Pilot Free Trade Zone introduced it on May 1,2014 and CIETAC introduced it on January1,2015.?China International Economic and Trade Arbitration Commission International Investment Dispute Arbitration Rules?(hereinafter referred to as the CIETAC < International Investment Dispute Arbitration Rules>)was effective on October 1,2017,to solve the investor-host country investment disputes.The article discusses the usability of EA system in China by analyzing the application obstacles' reasons,representations and influence.The second section of this part points out EA system is absent from our law system.It is necessary to give right to a EA by ?Civil Procedure Law of the People's Republic of China?or?Arbitration Law of the People's Republic of China?,clarify the effectiveness of decisions,give them domestic and foreign implementation guarantees.some modifications for investment arbitration in?SIAC Investment Arbitration Rules?like applicable method and schedule are also our important reference.Simultaneously,providing alternative remedies and introducting strict liability regimies to balance interests between investors and a country.To strengthen the implementation of emergency interim relief,Reciprocal-based negotiations with other countries carried out actively by China is required.