The Reflections And Perfection Of The System Of Emergency Arbitrator

Before the formal arbitration tribunal established,the emergency arbitrator system is a pre-emptive measure to better protect the legitimate rights and interests of the parties and improve the efficiency of arbitration,based on the urgency of the parties' application for interim measures.The emergency arbitrator system has the characteristics of procedural precedence,urgency and independence of arbitrators.In the practice of international commercial arbitration,more and more arbitration institutions incorporate emergency arbitrator system into their arbitration rules system as a special procedure for issuing interim measures of protection before the formal arbitration tribunal is formed.However,we should also see that the emergency arbitrator is facing many challenges.On the theoretical,first of all,regarding the jurisdiction of the emergency arbitrator,the emergency arbitrator has the right to issue instructions on interim measures based on the application of the parties to the arbitration.Secondly,as to whether the emergency arbitrator can handle the jurisdictional objection and examine the validity of the arbitration agreement,the arbitration institution which stipulates the system of the emergency arbitrator has not yet formed.While it is necessary to give emergency arbitrators an exact legal status.We can see that emergency arbitrators are comparable to formal arbitrators in terms of both business ability and trial means.Emergency arbitrators without legal status are not only challenged in their prestige,but also will have an impact on the recognition and enforcement of subsequent courts.Therefore,this problem must be solved.In addition,few arbitration rules or domesticlegislation clearly stipulate the legal status of emergency arbitrator,which also makes the status of emergency arbitrator in a more embarrassing situation,and the procedure of emergency arbitrator is not necessarily initiated as long as the parties apply for it.Arbitration institutions need to consider such substantive criteria as urgency,irreparable loss,good prima facie evidence and so on.In order to decide whether to adopt an emergency arbitrator or not,and most of the existing arbitration rules do not specify the type of interim measures that an emergency arbitrator can issue,it is necessary to consider whether an emergency arbitrator constitutes ultra vires.At the practical,first of all,the definitions of arbitration institutions are different for the decisions made by the emergency arbitrators,which has become one of the important factors for the court to decide whether the decisions of the emergency arbitrators are enforceable.At present,most domestic laws do not give enforcement to the decisions,which ultimately leads to the difficulty of recognition and enforcement of the decision of the emergency arbitrator in practice.Secondly,the emergency arbitrator system is prone to conflict with the current provisions of domestic law without updating the domestic law.For example,in China,only the court has the right to take interim measures of protection,which leads to the impact between the system of emergency arbitrator in China and the Arbitration Law and the Civil Procedure Law.Furthermore,with regard to the procedural convergence of the emergency arbitrator system,the arbitration rules generally only stipulate that the emergency arbitrator procedure should be terminated immediately after the establishment of the formal arbitral tribunal,but on the day when the formal arbitral tribunal is constituted,there is no clear stipulation if the emergency arbitrator is still in the process of trial and has not yet made a final decision,whether the emergency arbitrator procedure shall be terminated or not.The high requirement of starting the procedure of emergency arbitrator and the lack of uniform standard of discretion of emergency arbitrator make the of emergency arbitrator less used in practice.And the provisions of the current arbitration rules in China about the emergency arbitrator system do not explicitly give emergency arbitrator the power to adopt interim measures of protection,which makes the authorization of emergency arbitrator have natural defects.In addition,the system of emergency arbitrators has not fully taken into account the protection of the rights and interests of the parties.Although there are many problems in the system of emergency arbitrators,wecan not give up just because of these problems.We can improve the system of emergency arbitrator from the legal level,clarify the legal status of emergency arbitrators,effectively link the system of emergency arbitrator with the follow-up procedures by amending the arbitration rules,and further enhance the enforcement of the system of emergency arbitrator.It should be said that the system emergency arbitrator is still the trend of the times and has its necessity.We should seriously consider how to further improve this system and how to better let the system of emergency arbitrator play its due value.