Part IV Applicable Standards and Forms of Emergency Measures, 8 The Form of Relief in Emergency Arbitration

2021 ◽  
Author(s):  
Sim Cameron
Keyword(s):  
Central Issue ◽  
Arbitral Tribunal ◽  
International Arbitration ◽  
Interim Measures ◽  
Emergency Measures ◽  
Clear Majority

This chapter studies the form of relief in emergency arbitration. In any event, a prospective applicant to an emergency arbitration will almost certainly already have in mind the form of relief they require to preserve their rights pending constitution of the arbitral tribunal. Both for the applicant, and for the respondent, the central issue when considering the form of relief in emergency arbitration will be whether the emergency arbitrator has the power to impose the requested relief. Evidently, the form of relief the emergency arbitrator is empowered to impose is classified differently across the Emergency Arbitration Rules, with no clear majority approach. The forms of relief range from "interim measures" and "interim and conservatory measures"; to "urgent measures", "urgent provisional measures", and "urgent interim and conservatory measures"; and even to "emergency measures". The different terms used to describe the types of relief available under Emergency Arbitration Rules reflects the general approach taken to urgent relief in international arbitration.

scholarly journals Emergency Measures of Protection in International Arbitration

2018 ◽  
Vol 18 (1) ◽  
pp. 155-177
Author(s):  
Monika Feigerlová
Keyword(s):  
Arbitral Tribunal ◽  
International Arbitration ◽  
Investment Arbitration ◽  
Key Aspects ◽  
Emergency Measures

Summary Numerous arbitration rules were amended over the last five years to include provisions on the so-called emergency arbitration measures. An emergency arbitrator is appointed before the constitution of a full arbitral tribunal and is empowered to grant an interim relief that the applicants could have historically obtained in these urgent situations from ordinary courts only. The article discusses key aspects and challenges of the new institute in the context of both international commercial and investment arbitration.

12 Remedies—Interim Measures

2015 ◽  
Author(s):  
Collins Lawrence ◽  
Dhar Siddharth
Keyword(s):  
Arbitral Tribunal ◽  
International Arbitration ◽  
Interim Measures

This chapter discusses the power of a tribunal to grant interim relief and the standards applicable to the grant of interim relief. Parties may seek procedural interim protections in international arbitration to prevent the arbitral process from being undermined by a recalcitrant party, or to further the efficient disposition of the dispute. Common procedural protections that might be available from an arbitral tribunal include: anti-suit injunctions, to restrain a party to the arbitration agreement from bringing or pursuing competing proceedings in breach of the arbitration agreement; orders to protect the confidentiality of the proceedings; and orders to preserve evidence or to disclose important or relevant documents.

Emergency Arbitration

2021 ◽  
Author(s):  
Sim Cameron
Keyword(s):  
Arbitral Tribunal ◽  
National Courts ◽  
Investment Treaty ◽  
The Future ◽  
Interim Measures ◽  
Emergency Measures ◽  
Investment Treaty Arbitration

Emergency arbitration enables a party to seek urgent relief from an emergency arbitrator during the period required for the constitution of an arbitral tribunal. The procedure is not a substitute for expedited or summary proceedings. It simply enables a party to bypass national courts and obtain pre-tribunal relief in the form of interim measures even before an arbitral tribunal has been formed. The limited mandate of the emergency arbitrator is to determine whether the circumstances warrant urgent relief within the period required for tribunal formation. Studies have revealed that emergency arbitrators have adopted inconsistent approaches to emergency arbitration proceedings. Parties contemplating emergency arbitration are thus faced with uncertainty both as to procedure and prospects, and a lack of clarity as to how to formulate an application for emergency measures. By identifying commonalities between emergency arbitration rules, this book aims to promote greater uniformity in the practice of emergency arbitration, thereby giving parties greater control and certainty in bringing and defending applications for emergency measures. As emergency arbitration rules confer wide discretion on the emergency arbitrator, this uniformity is promoted whilst at the same time recognising, where appropriate, the need for an element of flexibility to be maintained. The book contains seven parts. Part I sets out an overview of emergency arbitration. Parts II to V move through all phases of an emergency arbitration, starting with pre-commencement considerations and ending with enforcement. Part VI is dedicated to emergency arbitration in investment treaty arbitration. Finally, in Part VII, the future of emergency arbitration is explored.

Evolution of Arbitration System under the China FTZ Template

2018 ◽  
Vol 01 (03) ◽  
pp. 1850018
Author(s):  
Liu Huichun
Keyword(s):  
Free Trade ◽  
Ad Hoc ◽  
Third Parties ◽  
International Arbitration ◽  
Republic Of China ◽  
Free Trade Zones ◽  
Judicial Practice ◽  
New Concepts ◽  
Interim Measures ◽  
Made In

The construction of China’s free trade zones (FTZs) has levered the evolution of the arbitration regime in the People’s Republic of China (PRC). Under the FTZ template, breakthroughs in arbitration have been made in regulations, FTZ arbitration rules, arbitral proceedings and judicial practice. The development of FTZ arbitration mechanism is highlighted with the introduction of new concepts, such as ad hoc arbitration consolidation of arbitration joinder of third parties and model cases, and with the updated or expanded interpretation of the existing concepts, such as permission for the offshore arbitration for WFOEs and FIEs interim measures arbitration in combination with mediation, and the open panel of arbitrators. Regardless of the progress, many issues related to the FTZ arbitration need to be clarified, among which is the amendment of the PRC Arbitration Law and keeping it in line with the mainstream international arbitration, constitute probably the most effective way to promote and guarantee the arbitration evolution.

The Status of the Testimony of the Non-Appearing Witness in International Arbitration

2020 ◽  
Author(s):  
Chester Brown ◽  
Patrick Still
Keyword(s):  
Arbitral Tribunal ◽  
Documentary Evidence ◽  
International Arbitration ◽  
The Status

Abstract A problem that arises from time to time in international arbitration proceedings is how an arbitral tribunal is to deal with the evidence of a non-appearing witness. The applicable rules of arbitration typically confirm that the tribunal has the authority to determine (e.g.) the “admissibility, relevance, materiality and weight of the evidence offered,” but they rarely go any further than this. The purpose of this article is to seek to provide guidance to tribunals by reviewing the available arbitral practice. This reveals that there are circumstances in which tribunals have adopted broadly consistent approaches to the status of the non-appearing witness's written testimony (although this does not appear to extend to the treatment of a non-appearing expert's evidence), and that tribunals have generally not distinguished between the existence of a valid reason for a witness's failure to appear, or of exceptional circumstances which would warrant the witness's evidence being admitted. In addition, tribunals appear to be reluctant to place much weight on a non-appearing witness's written evidence unless it is corroborated by the testimony of other witnesses or documentary evidence, and they are also reluctant to draw adverse inferences from a witness's non-appearance.

Emergency Arbitration: Mere Innovation or Vast Improvement

2019 ◽  
Vol 35 (4) ◽  
pp. 441-472
Author(s):  
Rania Alnaber
Keyword(s):  
New York ◽  
Arbitral Tribunal ◽  
Commercial Arbitration ◽  
National Courts ◽  
Investment Arbitration ◽  
The Future ◽  
New York Convention ◽  
Interim Measures ◽  
Specific Concern

Abstract Effectiveness of emergency arbitration is a disputable question, which was touched by several commentators since it was first introduced in 2006. Concerns have been raised in relation to the enforceability of emergency reliefs under the New York Convention and the risk of concurrent jurisdiction between emergency arbitrators and national courts in granting interim measures prior to the constitution of the arbitral tribunal. A more specific concern is related to the suitability of introducing this mechanism, to investment arbitration. This article argues that adopting an international instrument for enforcing emergency reliefs will be the best solution. As for investment arbitration, emergency arbitrators are no less important in this type of arbitration than in commercial arbitration. However, certain features of emergency arbitration shall be tailored to meet the distinct nature of investment cases. Although certain amendments are needed to enhance the effectiveness of this relatively new mechanism, the future of emergency arbitrator is still optimistic. Therefore, to avoid any duplication of fora, courts are expected to respect emergency arbitrator's jurisdiction and only intervene when the latter is not capable of granting a relief.

15 Costs: (SIAC RULES 34 TO 37)

2018 ◽  
Author(s):  
Choong John
Keyword(s):  
Hong Kong ◽  
Arbitral Tribunal ◽  
International Arbitration ◽  
Part C ◽  
Chamber Of Commerce ◽  
Key Features ◽  
The Cost ◽  
International Chamber Of Commerce

This chapter discusses Singapore International Arbitration Centre (SIAC) Rules 34 to 37. Parties negotiating a contract have to decide whether to agree to have disputes determined by municipal courts or through arbitration. Cost can be a major factor in that decision. Part A of this chapter begins with a look at the cost of arbitrating a dispute in comparison to having a dispute determined by litigation. There follows an analysis of the key features of the assessment of costs in SIAC arbitration in Part B. In Part C, the SIAC costs of arbitration are compared to the costs payable by parties in disputes administered by two of SIAC's regional competitors, the International Chamber of Commerce and Hong Kong International Arbitration Centre. Finally, Rules 34 to 37 of the SIAC Rules (2016), which govern the calculation and apportionment of the fees and expenses of an arbitral tribunal, the SIAC Secretariat, and individual party costs, are each considered in turn in parts D to G.

14 Awards: (SIAC RULES 32 TO 33)

2018 ◽  
Author(s):  
Choong John
Keyword(s):  
Arbitral Tribunal ◽  
International Arbitration

This chapter focuses on Singapore International Arbitration Centre (SIAC) Rules 32 to 33. Rules 32 and 33 provide the framework for the making of awards in SIAC arbitrations. Singapore law defines an award as ‘a decision of the arbitral tribunal on the substance of the dispute and includes any interim, interlocutory or partial award but excludes any orders or directions made under section 12’. Part A of the chapter considers Rule 32, which is split into twelve sub-rules, each dealing with a distinct issue relating to the issuance, content, scrutiny, effect, and the publication of awards. Part B addresses Rule 33, which allows a tribunal to correct or interpret an award that has been issued to the parties and issue an additional award.

Part IX Costs, Funding, and Ideas for Optimization, 26 The Costs and Funding of International Arbitration

2016 ◽  
Author(s):  
Tirado Joe ◽  
Meagher Daniel R ◽  
Gupta Arpan
Keyword(s):  
End Users ◽  
Arbitral Tribunal ◽  
International Arbitration ◽  
Funding Mechanisms

The costs and funding of international arbitration are an integral part of the dispute process and not mere consequence. As the costs for the end-users of international arbitration continue to rise, there is a greater emphasis on recovering them, a dismay about how arbitration is ‘out of control’, together with a variety of efforts at reforms designed to reduce costs and foster efficiency. This chapter first considers the different cost elements involved in international arbitration proceedings. These include institutional charges, arbitral tribunal fees and expenses, external counsel’s fees, costs of witnesses, and miscellaneous costs. It then explores the funding mechanisms which are increasingly available to parties in international arbitration, including conditional fee arrangements (CFAs), damages-based agreements (DBAs), and insurance products.

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