Study On The Rules And Practice Of Emergency Arbitrator System

With the development of international commercial arbitration,the emergency arbitrator system created to meet the needs of the parties to take urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal is receiving more and more attention in the field of international arbitration.At present,major international arbitration institutions around the world have successively introduced emergency arbitrator systems into their arbitration rules.However,with the further development of international commercial arbitration,the current emergency arbitrator rules have exposed many issues in the process of application,such as the lack of specific applicable standards for both procedural and substantive matters,which have resulted in large applicable disputes in practice.Therefore,the thesis discusses the application of the emergency arbitrator system in the whole process from the acceptance of cases to the enforcement of decisions in combination with the existing international emergency arbitration practice experience.Additionally,the thesis provides relevant suggestions for improving China's emergency arbitrator system based on international and domestic emergency arbitration practice experience and relative rules.Hopefully,the thesis may help in reducing the application disputes of the emergency arbitrator procedure in the future and in promoting the development of the emergency arbitrator system.The emergency arbitrator system makes up for the limitations of the delay in the formation of the arbitral tribunal,the courts' low efficiency in handling emergency relief issues,the lack of neutrality and confidentiality,and the relatively high costs that existed in the original emergency relief approaches,and therefore has its independent values and is of great significance to the further development of international commercial arbitration.The application problems of the emergency arbitrator system can be divided into three phases.The first phase is the acceptance of cases,the second is the procedural running phase following the acceptance of cases,and the third phase is about the enforcement of decisions.The first problem that the emergency arbitrator system faces during its application is the case acceptance conditions,i.e.what requirements the parties need to satisfy so that the arbitration institution may accept the case,and the emergency arbitrator may exercise the jurisdiction over the case.The arbitration rules of various arbitration institutions commonly don't specifically handle this issue.However,in general,the following two conditions shall be met.First,there is an effective agreement between the parties concerned that applicable for the emergency arbitration procedure.Second,the parties concerned shall be qualified subjects applying for the emergency arbitration procedure.As for the retroactive effect of the emergency arbitrator system derived from the validity of an arbitration agreement issue,considering that,on the one hand,the consensus of the parties is particularly important in the field of international commercial arbitration,and on the other hand,the potential damages caused to the respondent in retrospective manner are greater than the damages that might be caused to the applicant if it had no retroactive effect,it shall not be determined that the emergency arbitrator system has retroactive effect.With a view to improving the efficiency of handling emergency arbitration cases and saving unnecessary expenses for the parties concerned,the arbitration rules shall expressly provide for the issue of eligibility in arbitration,which shall be determined by the chairman of the arbitration court.In the operation stage of the emergency arbitrator procedure,although the emergency arbitrator generally has wide discretion in the whole procedure,he or she should also pay attention to the requirements of the arbitration rules and the compulsory law norms in domestic laws.With regard to the substantive standards in deciding the case,in order to improve the consistency and predictability of the emergency arbitrator decision in the international scope,the corresponding decision should be made with reference to international arbitration practice.Specifically,emergency arbitrators shall consider factors including the urgency of taking emergency relief measures,the likelihood of success on the merits and proportionality when deciding whether to grant emergency relief.It is suggested that,when developing relevant rules,arbitration institutions should further elaborate on the urgency requirements so as to judge the urgency by measuring whether irreparable damage is likely to be caused.At the same time,in consideration of improving the predictability of the emergency arbitrator decisions,the standards that whether irreparable harm may be compensated through damages may be further provided for on the basis of the standards for stipulating whether irreparable damage exists but not as a necessary condition.In addition to the foregoing,special attention shall be paid,during the course of the emergency arbitrator proceedings,to the availability of security in the emergency arbitrator proceedings and to the admissibility of unilateral emergency relief measures.Based on the exceptional nature of the emergency arbitrator proceedings,unilateral emergency relief measures of a particular type shall be allowed,such as prohibiting the parties from transferring specific assets during the hearing of an emergency arbitration case,in which case such measures may be granted specifically by the issuance of a preliminary order.Besides,although emergency arbitrators generally have the power to make the emergency order subjects to the provision of appropriate security,practice shows that emergency arbitrators have rarely exercised such power.Therefore,the provision of security should not be considered as a mandatory prerequisite for emergency relief measures in the formulation of the rules.The enforceability of emergency arbitrator decisions has long been regarded as a major impediment to the development of the emergency arbitrator system.But it should be noted that the current practice of emergency arbitration shows that most parties seem to comply voluntarily with emergency arbitrator decisions,and even in the case of non-compliance,the successful applicant could seek support from local courts as well as the arbitral tribunal.Therefore,concerns related to the enforceability of emergency arbitrator decisions shall not be overstated.In the case of non-compliance,a court generally may provide corresponding relief to an applicant in two ways,one is to directly enforce a decision of an emergency arbitrator under domestic laws or the New York Convention,and the other is to take certain sanction measures against a party failing to enforce a decision of an emergency arbitrator,such as imposing a fine for contempt of court,etc.In addition,a party may request the arbitral tribunal to indemnify it for any loss suffered as a result of the other party's non-compliance.Consequently,there is actually no need for too much worries about the enforceability issue.In 2019,the Beijing Arbitration Commission perfected the relevant provisions of the emergency arbitrator system in its arbitration rules according to its practical experience,representing the latest development of China's emergency arbitration rules.Since the introduction of the emergency arbitrator system,three cases of emergency arbitration have been accepted,but only the first case accepted in September 2017 has been fully disclosed,which provides useful guidance for the development of the practice of emergency arbitration.To meet the demand for further development of China's commercial arbitration,combined with international and domestic arbitration practice experience,the thesis suggests that China's arbitration rules shall be perfected in relation to the following regards.At the stage of case acceptance,the arbitration rules should specify the conditions for case acceptance and deny the retroactivity of the emergency arbitrator system.At the stage of procedure operation,rules should clarify substantive discretion standards and provide for the mechanism for taking unilateral measures.About enforcement of decisions,rules should clarify that the emergency arbitrator decision may be made in the form of an award and improve the relevant provisions of arbitral tribunals in the emergency arbitrator system.In addition,the thesis suggests that China should grant the arbitral tribunal to issue interim measures legislatively,and should further make it clear that the emergency arbitrator has the same legal status as an arbitral tribunal.However,it shall be noted that the parties should be given sufficient space of consent and the emergency arbitrators should still remain necessary discretion,and that it is inappropriate to overstate the emergency arbitrator system in legislation.Specifically,ex parte emergency orders shall not be prohibited legislatively,the grant of an emergency order shall not legislatively subject to the provision of security,and it is not appropriate to impose specific restrictions on substantive application standards.