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Emergency Proceedings

Delve into the concept of Emergency Arbitrator (EA) procedures under the SCC Rules, exploring the key features, application in investment cases, jurisdictional issues, and enforcement challenges. Learn about the "Opt-out" clause and the significance of preserving status quo in EA applications.

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Emergency Proceedings

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  1. EmergencyProceedings BCDR-AAA/SCC Joint Conference 18 November 2018 by Ginta Ahrel

  2. The conceptofEmergencyArbitrator • 2006 ICDR • 2010 SCC and SIAC • 2012 ICC • 2013 HIAC • 2014 LCIA • and others • Not in ICSID • Not in UNCITRAL

  3. Main features of the SCC EA Rules • ”Optout” clause • Application for EA can be madeuntil the case has beenreferred to an arbitral tribunal • Not an ex parteprocedure SCC RulesArticle 37 on Interim measures: “(1) The Arbitral Tribunal may, at the request of a party, grant any interim measures it deems appropriate. (2) The Arbitral Tribunal may order the party requesting an interim measure to provide appropriate security in connection with the measure. (3) An interim measure shall take the form of an order or an award.[…]”

  4. SCC EA Procedure Overview

  5. EA in investment cases under the SCC Rules • SCC Rules do not exempt investment cases from application of the EA procedure • 7 emergency applications (5 granted in full or partially) • Relief most often requested is to order the Respondent to preserve status quo, i.e.refrain from implementing a decision or executing court judgment

  6. EA in investment cases under the SCC Rules (cont.) • Prerequisites for granting a request: • Prima facie jurisdiction • Prima facie successful case on merits • Urgency and risk for irreparable harm • Proportionality

  7. Issuesrelated to jurisdiction • Applicabilityof EA Rules to the dispute? • Cooling-off period?

  8. Enforcement • EA decisions are enforceable in very few jurisdictions (Hong Kong, Belgium) • Is an EA award enforceable under New York Convention? Is it practical? • None of the Respondents in investment cases has complied with an EA award

  9. Thankyou! ginta.ahrel@lindahl.se from 1 January 2019 ginta.ahrel@westerberg.com

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