The ICC Emergency Arbitrator Helpful or

not?
Faisal Jashimuddin
2561

Lecturer: Prof. Dr. Justus Jansen

Alternative Dispute Resolution Mechanisms
Module: Ethics, Compliance, Alternative Dispute
Resolution Mechanisms

Date of Submission: June 13th, 2016

Acknowledgement
I would like to express my deep gratitude to Professor Dr. Justus Jansen and Dr. Antonius
Jonetzki, my partial module instructors, for their constructive lectures on Arbitration and on
alternative dispute resolution mechanisms, their patient guidance and support, enthusiastic
encouragement and personal advice. I would also like to thank Damian Baeumlisberger, for
his extensive lecture on academic writing and how to think and work like a scientist, advice
and assistance in keeping my progress on schedule and on accurate. I would also like to
extend my thanks to Dr. Nils Krause, LL.M (responsible of the module), Prof. Dr. Sarah
Jastram, for their very extensive and practical knowledge on Compliance & Ethics
respectively. Finally, I wish to thank the Hamburg School of Business Administration (HSBA)
& my parents for their support and encouragement throughout my study.
Sincerely,
Hamburg, June 1st 2016

Faisal Jashimuddin

Abstract
When will mankind be convinced and agree to settle their difficulties by
arbitration?
By: Benjamin Franklin

Table of contents
Emergency Arbitration- What and Why?: .......................................... 1
Purpose: ................................................................................... 1
Why and when should someone opt for an Emergency Arbitrator: ..... 1
Institutions have an emergency arbitrator procedure in their rules?: . 2
The ICC Emergency Arbitrator experience to date- some statistics:.. 4
The 15 first Emergency Arbitrator cases ................................ 4
Types of contracts/disputes? ................................................. 4
Some more Statistics ............................................................. 4
Types of measures sought..................................................... 4
Conclusion ......................................................................................... 5
Appendix............................................................................................ 6
References ...................................................................................... 13
Declaration of authencity ................................................................. 14

Emergency Arbitration- What and Why?

Emergency arbitration, fairly a recent development in the field of international

arbitration, are on the rise and it is selected to deal with requests for urgent
interim relief, such as an interim injunction, before the main tribunal is constituted. Emergency arbitrator provisions have been introduced into most of the
major arbitration rules as a means for parties to apply for interim relief without
the necessity to go to a national court, neither to wait until the tribunal is appointed.
Purpose
Urgent interim or conservatory measures prior to the transmission of
the file to the arbitral tribunal (Article 29(1))1
Why force parties who choose arbitration over state courts to go to
state courts for interim measures?
Special expertise of decision-maker
Confidentiality
Constituting an arbitral tribunal can take some time
National courts might not act as quickly as necessary
Terminates if Request for
Arbitration is not filed within 10
days of the Application (unless
EA fixes longer period of time)

Days:

3
5
ICC Emergency Arbitration Timeline

18

Why and when should someone opt for an Emergency Arbitrator?

Typically, from the filing of a request for arbitration with an arbitral institution,
durations can last approximately three or four months to constitute a tribunal.
When the choice of the arbitrator is challenged, that procedure may last even
longer. Nonetheless, sometimes a party wishes to prevent the other party from
disposing of disputed assets or evidence. In order to do that, the party needs

ICC Rules of Arbitration (accessed May 30th, 2016); available from

http://www.iccwbo.org/products-and-services/arbitration-and-adr/arbitration/icc-rules-ofarbitration/#article_d4

1|Page

to obtain urgent interim relief at the outset of a dispute before the arbitral tribunal is constituted.
Traditionally, arbitration did not provide an opportunity to obtain interim relief
until an arbitral tribunal was constituted. The only option was to seek such
relief at a national court. However, parties may be unwilling to approach a
court particularly if the court is in the home jurisdiction of the other party. To
address the issue, many arbitral institutions have recently adopted special
provisions that provide a mechanism for obtaining urgently-needed interim
relief at the very outset of proceedings.
Particulars
2015 2014 2013 2012
Requests for Arbitration
801 791 767 759
Application of Emergency measures 10
6
6
2
Awards
498 459 471 491
Arbitration Statistics2

2011
796
N/A
508

2010
793
N/A
479

The ICC Court of Arbitration has seen an impressive 20,000 cases since its
inception in 1923. Despite its reputation as a leading arbitral institution, the
ICC continues to strive for a foothold in a competitive, global environment.3
Institutions that have an emergency arbitrator procedure in their rules
Most notably:4

the International Chamber of Commerce (ICC)

the Stockholm Chamber of Commerce (SCC)

the International Centre for Dispute Resolution (ICDR)/American Arbitration

Association (AAA)

the Hong Kong International Arbitration Centre (HKIAC)

the Singapore International Arbitration Centre (SIAC)

the London Court of International Arbitration (LCIA)

Date
Rules
Article
1990
ICCs Pre-Arbitral Referee
Arts 1-7 & Appendix
2006
ICDR
Article 37
2010
SIAC
Schedule I
2010
SCC
Appendix II
2012
ICC EA Provisions
Arts 29 & Appendix V
2013
HKIAC
Schedule IV
2014
LCIA
Article 9B
Emergence of Emergency arbitration in accordance to its article5
2

ICC official website statistics

Leonie Amarasekara, ''ICC Arbitration Statistics 2013: A Comment on the ICC Court'', Lexisnexis(2014)
4
Barry Fletcher, ''Emergency arbitrationwhat's it all about?'', Lexisnexis(2013)
5
Obtained from respective websites
3

2|Page

Particulars
Total
Days required
Arbitrator App.
6
ICC (Jan 2012)
24
15
2
7
SIAC (July 2010)
50
15
1
HKIAC (Nov 2013)8
2
15
2
9
LCIA (Oct 2014)
none
14
3
10
SCC (Jan 2010)
5
5
1
ICDR (May 2006)11
49
Avg. 21
1
Emergency arbitrations some amongst notable institutions
The ICDR was the first notable arbitral institution to introduce emergency arbitrator provisions, back in 2006. Since then many other major arbitral institutions have followed the get-up, including ICC, SIAC, HKIAC, SCC and recently
the LCIA.12 However, the ICC was the first arbitral institution to provide a remedy by its mechanism for emergency relief contained in its Rules for a PreArbitral Referee Procedure, published in 1990, which provided for the appointment of a referee within eight days, and provision of an order for interim
relief within 30 days of receipt of the file by the referee. The American Arbitration Association (AAA) followed suit in 1999 by its Optional Rules for Emergency Measures of Protection, which provided for an emergency arbitrator to
be appointed within one business day, and award of interim relief if irreparable loss or damage could be shown.13

The ICDR on the first come basis had the highest volume of cases alongside
the SIAC, which had much more filings in a shorter period in comparison to
the ICDR. The other notable amounts of cases have been handled by the
ICCs emergency arbitrator. By looking at the numbers and the regional locations of these institutions, one can assume the effect of geographical locations
of businesses and disputes, which could have an effect to receiving applications for emergency arbitrations services as of now. Although there are indications as to this assumption is not right, the ICC is renowned for it being a major international court it has substantial numbers in its arbitration cases:14

ICC official website statistics, as of 2015

st
SIAC official website statistics, as of 1 June 2016
8
HKIAC official website statistics, as of 2014
9
LCIA official website statistics, as of 2015
10
SCC official website statistics, as of 2015
11
ICDR official website statistics, as of 2014
12
Gary B Born, Charlie Caher & Marija Scekic, ''The rise of emergency arbitrator provisions in
arbitral institutional rules'', WilmerHale,UK (March 1st 2014)
13
Gordon Smith, ''The Emergence of Emergency Arbitrations'',Resolution Institute, (December
2015)
14
Leonie Amarasekara, ''ICC Arbitration Statistics 2013: A Comment on the ICC Court'', Lexisnexis(2014)
7

3|Page

767 cases filed (up from 759 in 2012) from 138 countries and independent territories
80% of cases were cross-border disputes involving parties of different nationalities
66% of disputes between parties from different regions.

The ICC Emergency Arbitrator experience to date- some statistics15

The 15 first Emergency Arbitrator cases

The ICC Emergency Arbitrator experience to date

Total of 52 parties of 24 nationalities involved

Types of contracts/disputes:

Oil & Gas, M&A, sale of products, real estate, telecommunications

Amount in dispute: from US$ 500 000 to US$ 41 mi.

2 challenges against EAs (both rejected by the Court)

2 requests to EA for modification of the order (changed circumstances and

date of payment and interest on costs) (both rejected by the EA))

Relief (partially) granted in 5 cases, rejected in 6 cases

3 of the 5 successful applications were voluntarily complied with, in 1 case

(anti-suit injunction) the State court stayed the proceedings

Some more Statistics

In 2 cases the President declared the Application inadmissible under Article

1(5) App. V (arbitration agreement concluded prior to 1.1.12 (Article 29(6)a));
non-signatory (Article 29(5))

In 1 case the Emergency Arbitrator found he had no jurisdiction (Art. 6(2) App.
V) (contract amendment of 2012 did not cover arbitration agreement that was
concluded prior to 1.1.12)

1 case was withdrawn (Emergency Arbitrator issued termination order)

1 case concerned an Application by a respondent-party In 1 case the Responding-Party filed counterclaims (considered inadmissible by EA for lack of
provisional or conservatory character)

Types of measures sought

Securing enforcement of the future award: (Freezing assets)

o

order not to compromise funds necessary to fulfil payment obligations

under the contract

order that sums be placed into an escrow account

Preserving or restoring the status quo: (Preventing aggravation of damages)

o

order to refrain from selling assets of the target company in a SPA

15

Alma Forg, ''ICC Emergency arbitrator Provisions'', 4th PreMoot Conference, (February 19th
2015)

4|Page

order to refrain from calling a bank guarantee

order to pay a third party for delivery of perishable goods

Anti-suit injunctions:
o

order preventing the Responding-Party from initiating actions before

state courts or discontinuing any such action

Interim payments:

Order to pay sums due under the contract immediately, subject to reimbursement

Conclusion
The statistics reinforce the ICCs status as a global leading institution. Revisions to the Rules broadened the Courts appeal at a suitable time, when international arbitration is on the rise; moreover, knowledge promotional strategies candied the ICCs international presence. However, emergency relief has
had poor reception comparatively; it is doubtful that the number of applications
will rise melodramatically the figures are symptomatic of broader concerns
with emergency measures.
The concept of emergency arbitration is an attractive one for participants in
the oil and gas sector and is particularly helpful16 (where interim remedies are
frequently required). However, whilst the emergency arbitration system has, in
certain cases, proven to work well, there remain issues, particularly regarding
the enforceability of emergency arbitration awards. An emergency arbitration
is one in which an arbitrator is appointed to deal with requests for urgent interim relief before the Tribunal is constituted.
Overall, a heartening set of figures upon which the ICC can build. The ICC is
committed to self-improvement, conscious as it is of competition; it remains to
be seen what the ICC can learn from the LCIA when their rules come into
practice. For that, we will hold our breaths for the future Statistics.

16

Dyfan Owen and James MacDonald, ''The Use Of Emergency Arbitrator

Procedures In The Oil And Gas Sector'', (UAE Arbitration Yearbook 2015 ,Ashurst
LLP, 2015)
5|Page

Appendix
Comparison of a Selection of Provisions Relating to the Appointment of Emergency Arbitrators1
Opt Out

Time-Limit for
Application

Yes

Application may be made

irrespective of whether
applicant has filed Request
for Arbitration. However, EA
proceedings will be
terminated after 10 days if
application not followed by
Request for Arbitration.
Application must be made
prior to the file being
transmitted to the tribunal.

SIAC

Yes

Application must be made

concurrent with or following
the filing of the Notice of
Arbitration. Application must
be made prior to the
constitution of the tribunal.

SCC

Yes Applies
retroactively
to contracts
entered into
before
Rules
became
effective

Institution

ICC

ICDR/AAA

Yes

Appointment
Speed

Time to Render
Award

Powers of the Emergency

Arbitrator

Access to Courts

EA schedule in as short
a time as possible
normally within two days
of
transmission of file.
EA order to be issued no
later than 15 days from
transmission of file.

EA determines admissibility and

jurisdiction. EA may conduct
proceedings in the manner he deems
appropriate.

May seek
measures from
court prior to
applying for
emergency relief
and thereafter in
appropriate
circumstances
only.

EA appointed in as
short a time as
possiblenormally
within two days.

EA appointed within.
One day. EA schedule
due within two days.

No provision

Any relief deemed necessary. EA has

some powers as tribunal to issue interim
relief. Relief ceases in 90 days if no
tribunal is constituted.

Prior to the
constitution of the
tribunal but only in
exceptional
circumstances
thereafter.

Application may be made by

any time before ''the case
has been referred to an
Arbitral Tribunal''.

EA Appointed within
24 hours of receipt of
application.

EA order must be issued

no later than five days
from referral to EA

Any relief deemed necessary. EA has

some powers as tribunal to issue interim
relief. Relief ceases in 90 days where
case not referred to a tribunal or in 30
days where arbitration not commenced.

At any time

Application must be made

prior to the constitution of the
tribunal

EA appointed in one
business day. EA
schedule as soon as
possible or within two
business days of
appointment

No provision

Power to issue any relief deemed

appropriate. Vested with all powers of
the tribunal. Power ceases after tribunal
is constituted.

At any time

[2012] Int.A.L.R., Issue 5 2012 Thomson Reuters (Professional) UK Limited and Contributors

6|Page

Appendix 2: Comparison of emergency arbitration procedures between arbitral institutions

Institution

ICC

SIAC

HKIAC

LCIA

PRIME Finance

Applies unless parties opt-out

Yes

Yes

Yes

Yes

Yes

When to apply

From 10 days before submitting a Request for

Arbitration to referral to an arbitral tribunal

Concurrent with or after filing a Notice of Arbitration

but prior to the constitution of an arbitral tribunal

Concurrent with or after filing a Notice of Arbitration

but prior to the constitution of an arbitral tribunal

Any time prior to the formation or expedited

formation of the tribunal

From 10 days before submitting a Request for

Arbitration to referral to an arbitral tribunal

Application to include

Details of party and their counsel

Circumstances of the underlying dispute
Urgent interim or conservatory measures sought
and reasons
Description of arbitration agreement and
comments on the seat, applicable law and
language
Application amount payment proof

Nature of the relief sought with reasons in writing

Statement certifying that all other parties have
been notified or that good steps have been taken
to notify them
Payment of application fees

Details of the parties and their counsel

Description of the underlying dispute
Emergency relief sought and reasons
Description of arbitration agreement and
comments on the seat, applicable law and
language

Written application and copies to be supplied to

all parties involved
Specific grounds for requiring an EA
Specific claim and ground(s) for relief
Written confirmation that the applicant has paid
the special fee as specified under article 9B

Details of the parties

Identification of the document out of which the
dispute arose or a 13-page description of the
relevant relationship
Description of the claim and the measures
sought and reasons
Description of the arbitration agreement and
comments on the seat, applicable law and
language
Proof of payment of fees and administrative
costs

Time within which an emergency

arbitrator will be appointed

2 days

1 business day

2 days

3 days (or as soon as possible thereafter)

72 hours

Time allotted for challenge to

emergency arbitrator

3 days

1 business day

3 days

There is no specific provision for challenging EA

appointment otherwise, within 14 days of the
formation of the arbitral tribunal

72 hours

Powers of EA

May make orders for interim or conservatory relief,

subject to such conditions as emergency arbitrator
thinks fit, including appropriate security

Same powers as the arbitral tribunal

Power to order or award any interim relief
deemed necessary and appropriate security

To make an emergency decision and order

provision for security

May make any order or award which the arbitral

tribunal could make

Any urgent provisional measures

Time for emergency arbitrator to

render an order/award

15 days

Not stated but practice shows 15 days generally

15 days

14 days

15 days

When an order/award ceases to be

binding

If a Request for Arbitration is not received within

10 days of the emergency application
An arbitral tribunal makes a final award
Withdraw of all claims or termination of arbitration

If emergency arbitrator or arbitral tribunal so

decides
Arbitral tribunal makes final award
Claim is withdrawn
Arbitral tribunal not constituted within 90
days from emergency arbitrator decision

If emergency arbitrator or arbitral tribunal so

decides
Arbitral tribunal makes final award
Claim is withdrawn
Arbitral tribunal not constituted within 90
days from emergency arbitrator decision

May be confirmed, varied, discharged or revoked,

in whole or in part, by order or award made by the
tribunal upon application by any party or upon its
own initiative.

If a party fails to file a notice of arbitration

within 10 days after receipt of the emergency
arbitrator application
Arbitral Tribunal makes final award unless the
arbitral tribunal decides otherwise
Arbitral Proceedings are terminated

Access to courts

Yes, prior to application for emergency relief and in

appropriate circumstances

Yes, prior to application for emergency relief and in

appropriate circumstances

Yes, at any time

Yes, at any time. However, any such application

made during emergency proceedings must be
notified to the Emergency Arbitrator and the other
parties

Yes, at any time

Effective date (Date of Arbitration

unless otherwise provided)

1 January 2012

Date of arbitration agreement, therefore uniquely

has retrospective effect

1 November 2013

1 October 2014

16 January 2012

Cost

US$40,000

S$5,000 plus 20% of sole arbitrators maximum fee

HK$180,000

8,000 (application fee)

31,000

20,000 (to cover EAs fees but may be increased

by LCIA court where particular circumstances
warrant a higher fee

Crossing Borders International Arbitration Insights / kwm.com

7|Page

ICC, AAA, LCIA, SCC, ICAC, SIAC, and CIETAC Arbitration Rules Comparison
ARBITRAL INSTITUTION
Key Features

How to
commence
arbitration

How many
arbitrators

Who appoints
arbitrators

Restrictions
on nationality
of arbitrators

ICC
(International Chamber
of Commerce)

AAA
(American Arbitration
Association)

LCIA
(The London Court
of International Arbitration)

SCC
(Arbitration Institute
of Stockholm Chamber
of Commerce)

ICAC
(International Commercial
Arbitration Court)
[Russia]

SIAC
(Singapore International
Arbitration Centre)

CIETAC
(China International
Economic and Trade
Arbitration Commission)

Article 4(1) - Request sent to

ICC Court Secretariat who
then notifies the other party.

Article 2 Written Notice to

the AAA Administrator and to
the other party concurrently.
Claimant may commence
using Administrators online
system at www.icdr.org.

Article 1.1 - Request sent to

the LCIA and the other party.

2 - Request sent to the SCC

Institute.

8.1 Statement of claim filed

with the ICAC.

Rule 3.1: File Notice of

Arbitration with Registrar.

Article 12: Submit Request

for Arbitration in writing to the
Arbitration Court.

Article 12(1) - 1 in the absence

of agreement between the
parties unless ICC decides 3
is appropriate.

Article 11 In the absence

of agreement between
the parties, 1, unless
Administrator decides 3 is
appropriate.

Article 5.8 - In the absence

of agreement between the
parties unless LCIA decides 3
is appropriate.

12 - 3 in the absence of
agreement between the
parties unless SCC decides 1
is appropriate.

17.2 3 arbitrators unless

the ICAC Presidium decides
in its own discretion on a sole
arbitrator and unless parties
agree otherwise.

Rule 6.1 1 unless the parties

have agreed otherwise or 3
if complexity of dispute so
requires.

Article 25 3 unless parties

agree to 1.

Article 13 If 1 arbitrator,
parties by agreement or
nomination (to be confirmed
by ICC Court) and in the
absence of agreement, ICC
Court will appoint.
If 3 arbitrators, each party
may nominate 1 arbitrator
to be confirmed by the ICC
Court.

Article 12 - Parties may

agree any procedure for
appointing the arbitrators and
in the absence of agreement,
Administrator will appoint
using ICDR list method in
Article 12(6).

Article 5.7 - LCIA by reference

to the methods or criteria
agreed by the parties.

13(2) & (3) - Where there

is 1 arbitrator, parties have
10 days to jointly appoint; if
parties fail to appoint, SCC
will appoint. Where there is
more than 1 arbitrator, each
party shall appoint equal
number and the SCC appoints
the chair (with SCC appointing
where a party fails to do so).

17- Parties can make

representations within 15 days
of notice from ICAC otherwise
ICAC Presidium appoints.

Rule 6 President shall

appoint the arbitrator
(President defined as the
President of the Court and
includes Vice president
and the Registrar (Rule 1.3);
parties may nominate an
arbitrator but the nomination
is subject to appointment by
the President.

Article 26 Parties nominate

from list of CIETAC approved
arbitrators; parties may
nominate arbitrator(s) from
outside of CIETACs list but
such arbitrator(s) must first
be confirmed by Chairman of
CIETAC.

Article 13 (1) - Sole arbitrator

or chairman is not usually
permitted to be the same
nationality as one of the
parties.

No restrictions.

Article 6.1 - Sole arbitrator or

chairman is not permitted to
be the same nationality as one
of the parties.

13(5) - Sole arbitrator or chair

is not usually permitted to be
the same nationality as one of
the parties unless otherwise
agreed by the parties or SCC
deems it appropriate.

No restrictions.

No restrictions.

No restrictions.

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1

ARBITRAL INSTITUTION
Key Features

Time limits for

challenging
the
appointment
of arbitrators

Multi-party
disputes

ICC
(International Chamber
of Commerce)

AAA
(American Arbitration
Association)

LCIA
(The London Court
of International Arbitration)

SCC
(Arbitration Institute
of Stockholm Chamber
of Commerce)

ICAC
(International Commercial
Arbitration Court)
[Russia]

Article 14 (2) - 30 days from

notification of appointment or
from becoming aware of the
relevant circumstances.

Article 14(1) -15 days from

notification of appointment or
from becoming aware of the
disqualifying circumstances.

Article 10.3 - 14 days from

notification of appointment or
from becoming aware of the
relevant circumstances.

15(2) - 15 days from the

date on which disqualifying
circumstances became
known.

18.1 Either party may send

written notice of challenge
to the ICAC within 15 days of
being notified of composition
of tribunal.

Rule 12.1 Either party must

send notice of challenge
within 14 days after receipt
of notice of appointment
or within 14 days after
disqualifying circumstances
become known (listed in Rules
11.1 and 11.2).

Article 32 Within 10 days

from the date of receipt of
the Declaration or written
disclosure of arbitrator or
within 15 days from the date
a party receives the Notice
of Formation of the Arbitral
Tribunal.

Article 12(6) 1 or 3
arbitrators. Where 3
arbitrators, claimants (jointly)
and respondents (jointly) shall
nominate an arbitrator. Absent
nomination, ICC Court will
appoint.

Article 12(5) Administrator

may appoint tribunal unless
the parties have agreed
otherwise within 45 days
of commencement of the
arbitration.

Article 8 - LCIA Court

appoints tribunal taking
into account the parties
nomination

13(4) - Multiple claimants

(jointly) and multiple
respondents (jointly) appoint
an equal number of arbitrators
and if 1 party fails to make an
appointment SCC will appoint
the entire tribunal.

17.8- Multiple claimants

and respondents each to
choose one arbitrator and one
reserve arbitrator. Where no
agreement is reached, the
ICAC Presidium shall appoint.

Rule 9 If 3 arbitrators are

to be appointed, Claimant(s)
jointly nominate 1 arbitrator
and Respondent(s) nominate
1 arbitrator within 28 days of
receipt by Registrar of Notice
of Arbitration; if not timely
nominated by either party,
then President appoints all 3.
If 1 arbitrator, all parties
must agree. In absence of
nomination within 28 days of
receipt by Registrar of Notice
of Arbitration, President
appoints.

Article 29 When there are

two or more Claimants and/
or Respondents, they must
jointly nominate their 1
arbitrator or entrust Chairman
to appoint their 1 arbitrator. If
either side fails to nominate,
Chairman will appoint all
3 members of tribunal and
designate 1 as presiding
arbitrator.

Article 18 - Unless otherwise

agreed by parties this will be
determined by ICC Court.

Article 17 - Unless otherwise

agreed by parties, this is
initially determined by the
Administrator with the tribunal
having the final say within 45
days after its constitution.

Article 16.2 - Unless otherwise 20(2) - To be decided by the

agreed by the parties this will
tribunal after consultation with
be London unless LCIA Court parties.
decides otherwise.

22 Moscow although the

parties may agree to hold the
hearing in a different place

Rule 18 Unless otherwise

agreed, seat of arbitration will
be Singapore unless tribunal
determines that another seat
is more appropriate.

Article 36 Unless
otherwise agreed, Beijing
for a case administered by
the Arbitration Court or at
the domicile of the subcommission /arbitration
center administering the
case, or at another location if
tribunal deems it necessary
with approval of President of
Arbitration Court.

Hearing venue

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SIAC
(Singapore International
Arbitration Centre)

CIETAC
(China International
Economic and Trade
Arbitration Commission)

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2

ARBITRAL INSTITUTION
Key Features

ICC
(International Chamber
of Commerce)

AAA
(American Arbitration
Association)

LCIA
(The London Court
of International Arbitration)

SCC
(Arbitration Institute
of Stockholm Chamber
of Commerce)

ICAC
(International Commercial
Arbitration Court)
[Russia]

SIAC
(Singapore International
Arbitration Centre)

CIETAC
(China International
Economic and Trade
Arbitration Commission)

Article 6 - ICC Court will rule

on prima facie validity of
arbitration agreement and
other questions of jurisdiction
are for the tribunal to decide.

Article 19(1) - Made to the

tribunal itself.

Article 23.1 - Made to the

tribunal itself.

9 - 10 - Made to the SCC

board.

2(4) To be decided by an
arbitral tribunal examining the
case.

Rule 25 If challenge is
made before the tribunal
is selected, then it is made
to the Registrar who then
determines if objection is to
be made to the Court. If after
tribunal selected, then made
to tribunal.

Article 6 Made to tribunal in

writing.

Arbitration
procedure

Article 19 and 22 - Parties

may supplement the Rules in
their arbitration agreement
and subject to the Rules the
tribunal has discretion in how
to conduct proceedings.

Article 20 - Subject to the

Rules, the tribunal has
discretion in how to conduct
proceedings.

Article 14 - Parties are

encouraged to agree
procedure and any gaps will
be filled by the tribunal.

19 To be determined by the
tribunal in accordance with
the arbitration agreement and
the Rules.

21 To be conducted on an
adversarial basis and on the
principle of equality of the
parties.

Rule 15: To be determined by

tribunal. Tribunal will conduct
arbitration in such manner as
considers appropriate, after
consulting with parties.

Articles 4 and 35 To be
determined by tribunal unless
parties agree otherwise.

Article 37 Yes.

30 - Yes.

46 - Yes.

25 - Yes

Rule 35.1 Yes

Article 38 Yes

Confidentiality

Appendix 1, article 6 - No
specific provision but the
tribunal may take measures
to protect confidential
information.
Article 30 - 6 months from
signature of the terms of
reference subject to any
extension.

Article 30(1) As quickly as

possible but no later than
60 days from the date of the
closing of the hearing unless
parties have other agreement.

No.

37 - 6 months from the date

of referral to SCC subject to
any extension.

24 Within 180 days after

the date of composition of the
arbitral tribunal. The ICAC
Presidium may extend this
period.

Rule 28.2 Tribunal submits

draft award to the Registrar
within 45 days after close of
proceedings.

Article 48 Arbitral tribunal

must render award within 6
months from date on which
the arbitral tribunal is formed.
May be extended with
permission from the President
of the Arbitration Court

Article 31 - Majority of the

arbitrators but in the absence
of a majority Chairman can
make the award alone.

Article 29(2) - Majority of the

arbitrators.

Article 26.6 - Majority of the

arbitrators but in the absence
of a majority, the presiding
arbitrator can make the award
alone.

35(1) - Majority of the

arbitrators or Chairperson if
no majority.

38.2 If an award cannot

be made by majority vote,
it is made by the presiding
arbitrator.

Rule 28.5 The majority if

more than 1 arbitrator; if
majority cannot agree, then
presiding arbitrator will make
the award.

Article 49(5) and (6) Majority

if more than 1, or if no majority
then award is made in
accordance with the presiding
arbitrators opinion.

Challenges
to the
jurisdiction of
the tribunal

Time limit for

award

Who makes
the award if
arbitrators
disagree

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3

ARBITRAL INSTITUTION
Key Features

ICC
(International Chamber
of Commerce)

AAA
(American Arbitration
Association)

LCIA
(The London Court
of International Arbitration)

SCC
(Arbitration Institute
of Stockholm Chamber
of Commerce)

ICAC
(International Commercial
Arbitration Court)
[Russia]

SIAC
(Singapore International
Arbitration Centre)

CIETAC
(China International
Economic and Trade
Arbitration Commission)

Article 33 Only by the ICC

Court to identify mistakes in
form.

Articles 30 - No but if the

arbitration laws of the country
where the award is made
require the award to be filed
or registered, the tribunal shall
cause such requirements to
be satisfied.

No

No.

No

Rule 28.2 After Tribunal

submits draft award to
Registrar, Registrar may,
as soon as practicable,
suggest modifications as to
form of award and points of
substance. No award can be
made until it is approved by
Registrar as to form.

Article 49(9) No

Article 37 and Appendix III,

Article 4 - Calculated on an ad
valorem basis and adjusted to
take account of complexity of
the matter.

Calculated on ad valorem
basis based on fee schedule.

Article 28 Based on fee

schedule

43 - Calculated on an ad
valorem basis.

1 Schedule of Costs
Appendix - Payable to cover
costs of the organization
and to conduct the arbitral
proceedings.

Rule 30.1 Calculated by

Schedule of Fees in force at
time of commencement of
arbitration.

Appendix II Schedule of
Fees

Article 37 and Appendix III,

Article 4 - Calculated by
reference to the time spent
and the value of the dispute.

Article 35 Calculated by
reference to time spent, their
rates and size and complexity
of the matter.

Article 28.4 Based on

discretion of Arbitral Tribunal.

43 - Calculated on an ad
valorem basis.

3 Schedule of Costs
Appendix calculated by
reference to the amount of the
claim.

Rule 30.1 Calculated by

Appendix II Schedule of
Schedule of Fees in force at
Fees
time of commencement of
arbitration although alternative
methods of determining
Tribunals fees may be agreed
to by the parties.
Rule 32 Tribunal fees
fixed by Registrar in
accordance with Schedule
of Fees. Registrar may allow
additional fees in exceptional
circumstances.

Costs awards
in favour of
successful
party

Article 37 (5) - At the

discretion of the tribunal.

Article 34 - At the discretion of Article 28.3 - At the discretion

the tribunal.
of the tribunal.

44 - At the discretion of the

tribunal.

6.1 Schedule of Costs

Appendix Yes, unless the
parties agree otherwise

Rule 33 At the discretion of

the tribunal.

Article 52(2) At the discretion

of the tribunal

Deposits on
account of
costs

Article 36 - Yes.

Article 36 - At the discretion of Article 24.1 - At the discretion

the Administrator.
of the tribunal.

45 - Yes.

14.2 Yes

Rule 30.2 Yes, fixed by

Registrar

Article 12 Yes

Article 28 and Appendix V,

Article 6 Allowed for interim
and emergency proceedings.

Article 6(6) at the discretion

Article 25.2 - At the discretion
of the emergency arbitrator for of the tribunal.
emergency measures, Article
24(2) at the discretion of the
tribunal for interim measures.

45(6) Up to Board
discretion

14.1 Yes

Rule 24(k) and (l) Yes

Appendix II Lien on award

Article 23 allows for security in
connection with conservatory
or interim measure.

Scrutiny of the
award by any
other body

Administration
fee

Arbitrators
fees

Security for
costs

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4

ARBITRAL INSTITUTION
Key Features

SCC
(Arbitration Institute
of Stockholm Chamber
of Commerce)

ICAC
(International Commercial
Arbitration Court)
[Russia]

AAA
(American Arbitration
Association)

LCIA
(The London Court
of International Arbitration)

One of the best known arbitral

institutions.

Procedure tends to be more

flexible and less bureaucratic
than other formal institutions.

One of the foremost

international arbitral
institutions and widely
respected.
Speed as there is no need for
Terms of Reference or review
of final award.
Availability of wide array of
interim relief.

Perceived neutrality.
Speed as there is no need for
Terms of Reference or review
of final award.

Confidentiality and the high

Confidentiality, fixed schedule
qualifications of the arbitrators of fees and costs, considered
are generally regarded as the
internationally neutral.
main advantages of using
arbitration in Russia.

Confidentiality

Can be seen as Americacentric.

List of approved arbitrators
mostly comprises US citizens.

May not be considered

sufficiently neutral by nonEnglish parties where the
other party is English.

Under Swedish arbitration

law, arbitrators in a Swedishseated arbitration lack some
of the powers taken for
granted elsewhere such as
the power to order witnesses
to testify under oath and the
Swedish courts can be slow
in granting interim relief like
injunctions.

As a general rule, arbitral

proceedings last longer than
court proceedings.

Location will be China unless

parties have agreed elsewhere
CIETAC is a government
body may not be considered
sufficiently neutral in
government disputes. Also
stringently formalistic on
determining arbitrability of
disputes.

Advantages

The ICC does not maintain

a central list of arbitrators
but instead seeks
recommendations from
its consultative national
committees which can delay
Disadvantages
appointment of arbitrators.
The need for Terms of
Reference and vetting of the
award by the ICC Court adds
to the time taken to complete
the arbitral process.

SIAC
(Singapore International
Arbitration Centre)

CIETAC
(China International
Economic and Trade
Arbitration Commission)

ICC
(International Chamber
of Commerce)

Procedures determined by
tribunal.

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2015

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5

Reference
ICC Rules of Arbitration. Accessed May 30th, 2016; available from
http://www.iccwbo.org/products-and-services/arbitration-andadr/arbitration/icc-rules-of-arbitration/#article_d4
Leonie Amarasekara, ''ICC Arbitration Statistics 2013: A Comment on the ICC
Court'', Lexisnex-is, 2014.
Barry Fletcher, ''Emergency arbitrationwhat's it all about?'', Lexisnexis, 2013.
Gary B Born, Charlie Caher & Marija Scekic, ''The rise of emergency arbitrator
provisions in arbitral institutional rules'', Wilmer Hale, UK, March 1st 2014.
Gordon Smith, ''The Emergence of Emergency Arbitrations'', Resolution
Institute, (December 2015).
Alma Forg, ''ICC Emergency arbitrator Provisions'', 4th PreMoot Conference,
(February 19th 2015).
Dyfan Owen and James MacDonald, ''The Use of Emergency Arbitrator.
Procedures in the Oil and gas sector'', UAE Arbitration Yearbook 2015,
Ashurst LLP, 2015.
Raja Bose and Ian Meredith, Emergency Arbitration procedures: A
comparative analysis, International Arbitration Law Review, 2012 Thomson
Reuters (Professional) UK Limited and Contributors.
Peter L. Michaelson, Emergency Arbitration: Fast, Effective and Economical
By Peter, Michaelson ADR Chambers, New York, 2015
Johan Lundstedt, SCC Practice: Emergency Arbitrator Decisions, the
Arbitration Institute of the Stockholm Chamber of Commerce
(SCC), 2013.
Jussi Hakanen, Emergency Arbitration, Faculty of Law, University of
Helsinki, 2013.

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Declaration of Authenticity
I declare that all material presented in this thesis is my own work, or fully and
specifically acknowledged wherever adapted from other sources. I understand
that if I have misrepresented material presented in the thesis, any degree or
credits awarded to me on the basis of that material may be revoked.

12th June 2016

________
Date and Signature

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