Global economic and supply chain pressures caused by the pandemic have not only led to an increasing numbers of international arbitrations, but an increasing number of emergency arbitrations as well, particularly in the life sciences, technology, and hospitality sectors. This article examines some of the key benefits that emergency arbitration offers in cross-border disputes, as well as some of the enforcement challenges that emergency awards can face.

Background

Emergency arbitration, which is now an option under all well-known international arbitration rules, is an invaluable tool that allows parties to get fast interim and conservatory relief from an emergency arbitrator before a full merits tribunal is appointed, which can frequently take several weeks or months. The virtual process, which does not rely on physical appearances in national courts that are subject to closures and backlogs for a variety of reasons, can oftentimes be concurrently enforced in multiple jurisdictions around the globe under the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), and can therefore have significantly greater reach than a national court judgment granting similar relief. Consequently, emergency arbitration offers an excellent solution when parties need quick, confidential relief, particularly when they need that relief in more than one jurisdiction, and particularly when any one of those jurisdictions is facing delays caused by COVID-19.

Key Features

While there are differences in emergency arbitration procedures under different institutional rules, there are several features that are common to every emergency arbitration conducted under all major institutional rules. Those features include:

• Quick Processes: Emergency arbitration is designed to provide quick results, so most institutions seek to appoint emergency arbitrators within 24 to 48 hours of the emergency request being filed (and the filing fee being paid), and generally require those arbitrators to issue emergency awards within two weeks of the application being registered. Those quick timelines mean that emergency arbitrators will impose aggressive written submission schedules, and will generally focus any oral hearings they might hold (and there is no general requirement that hold any) on legal arguments, rather than witness examination.
• Single Emergency Arbitrator: Regardless of the number of arbitrators the arbitration clause calls for or the appointment method, emergency arbitrations are conducted by a sole emergency arbitrator that is appointed by the relevant institution, which is something to which parties consent by selecting the arbitral rules in question.
• Little or No Disclosure: The compressed timelines for issuing emergency awards generally precludes disclosure from the opposing party, so parties bringing emergency applications must already generally possess the evidence they need to support their emergency application.
• Results Do Not Bind the Merits Tribunal: Emergency arbitral awards do not bind the merits arbitrators, which can accept, modify or vacate emergency awards, which means that emergency awards and orders are inherently interim in nature.
• No Ex Parte Relief: With the exception of the Swiss Rules of International Arbitration, institutional rules require emergency applications to be on notice, as ex parte relief is generally considered impermissible under Article V of the New York Convention.
• Results Do Not Bind Third Parties: Arbitration is a consensual form of dispute resolution that only binds the parties to the arbitration agreement, so emergency arbitration awards cannot legally bind third parties, like banks, customers, or other third-parties that hold counterparty assets.

Emergency arbitration is therefore a quick process that affords parties urgent relief in the frequently long period before a full merits tribunal is appointed. While parties can approach national courts for that relief in many instances, as the following section explains, emergency arbitration frequently offers significant advantages over interim judicial relief in appropriate circumstances.

Advantages Over Interim Judicial Relief

Emergency arbitration provides several advantages over interim judicial relief in appropriate situations. Those advantages include:

• Single Forum Relief: Emergency arbitration is ideally suited for resolving multijurisdictional disputes, like IP and trade secrets issues, because it allows parties to present their case through one set of counsel to one commercially-minded adjudicator that will apply one set of procedural rules and (generally) one governing law, instead of forcing parties to simultaneously approach multiple national courts through multiple sets counsel in proceedings that will follow different procedures, move at different speeds, and apply different national laws that may not offer different remedies.
• Confidentiality: Emergency arbitration is generally confidential, which allows applicants to quietly seek interim relief without alerting the world to its dispute (unless enforcement in a court with public rights of access becomes necessary), which not only helps protect sensitive commercial information, but which facilitates possible settlement.
• Speed: Emergency arbitration provides an excellent alternative to those courts around that world that cannot grant quick interim relief, or to courts that cannot granted interim relief in the two week timeframe that most institutional rules envision, particularly during challenging time periods like the pandemic.
• Varied Remedies: Emergency arbitration allows applicants to obtain interim remedies that may not be available in every jurisdiction in which they might need relief—such as a worldwide freezing order or an injunction when money damages might still compensate the applicant—but which can nevertheless be enforced in those jurisdictions as a New York Convention award.
• Global Enforceability: The New York Convention currently has 170 signatories, and while not every country will enforce an emergency award, enough do that emergency arbitration offers a credible possibility for global enforcement.

Accordingly, while emergency arbitration is not ideal for every situation, and particularly not when ex parte relief or relief against third parties will be needed, it frequently offers significant advantages over judicial interim measures in appropriate circumstances. As the following section explains, those circumstances include instances where the relevant jurisdictions will enforce an emergency award, because not every jurisdiction will do so because of their interim nature.

Limitations on Global Enforcement

As noted above, the New York Convention, which is one of the most successful global commercial treaties of all time, allows arbitral awards to be concurrently enforced in any one of 170 signatory states. That fact gives arbitral awards a significant enforcement advantage over national court judgments, which do not enjoy any such equivalent reach. The New York Convention, however, is generally construed to apply only to final and binding awards, which can present difficulties when dealing with emergency awards in certain jurisdictions, because those awards are inherently interim in nature.

In recognition of the fact that emergency arbitration is only useful if its results can be judicially enforced when needed, jurisdictions have come up with a variety of solutions to the enforcement problem. Some jurisdictions, like Singapore and Hong Kong, have enacted legislation that allows for the enforcement of emergency awards, and Article 17 of the 2006 UNCITRAL Model Law also makes interim awards enforceable.

Other jurisdictions, such as the United States, have found judicial solutions to the problem by holding that emergency awards are final and binding as to the issues they address, and are therefore enforceable under the New York Convention.

In a decision that has generated significant attention in the international arbitration community, the Indian Supreme Court recently reached an similar conclusion by holding that parties are free to agree to the arbitral rules that govern their dispute, and that if those rules include emergency arbitration provisions, the parties should be bound by their choice (at least when the arbitration is seated in India, for the time being).

Courts in other counties, such as the DRC, Ukraine, and Egypt, have reached similar judicial solutions, and there appears to be a nascent trend developing around the world for emergency awards to be enforced as a means of ensuring their efficacy and party autonomy.

Not all countries have followed that trend, however, and some still resist enforcing any interim awards. Some courts examine whether the emergency award is an award (something final and enforceable) or an order (which is interim and procedural in nature), either in name or in substance, and others will look to see where the tribunal was seated to determine if it had the right to issue an enforceable interim order. Some simply refuse to enforce emergency award altogether on grounds that the merits tribunal can modify or vacate them. Consequently, parties must consider where they will seek to enforce emergency awards before pursing emergency arbitration over judicial interim measures, but even some of those countries that currently impose enforcement barriers may be changing their view, as the Indian Supreme Court decision demonstrates.

Conclusion

Emergency arbitration is a valuable tool that has become increasingly common in cross-border disputes during the pandemic. The advantages it offers ensure that it will continue to be a common feature in appropriate circumstances well after the pandemic is over.

J.P. Duffy is a New York-based partner in Reed Smith’s international arbitration practice who routinely acts as counsel and sits as an arbitrator in emergency arbitrations.