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Publication
60 Years of the New York
Convention: Key Issues and
Future Challenges
Bibliographic reference
Sai Ramani Garimella and
Poomintr Sooksripaisarnkit,
'Chapter 5: Emergency
Arbitrator Awards:
Addressing Enforceability
Concerns Through National
Law and the New York
Convention', in Katia Fach
Gomez and Ana M. Lopez-
Rodriguez (eds), 60 Years of
the New York Convention:
Key Issues and Future
Challenges, (© Kluwer Law
International; Kluwer Law
International 2019) pp. 67 -
84
© 2020 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
Chapter 5: Emergency Arbitrator Awards: Addressing
Enforceability Concerns Through National Law and the
New York Convention
Sai Ramani Garimella; Poomintr Sooksripaisarnkit
(*)
SUMMARY
As the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New
York, 1958) (NY Convention) celebrates its 60th anniversary, it is pertinent to establish its
relevance to the enforceability of decisions emanating from improvised variants such as
emergency arbitration. By investigating the compatibility of the NY Convention with
Emergency Arbitration, this chapter seeks to map the diversity in laws and procedures
related to enforcing these decisions in various jurisdictions and under arbitral
institutions’ rules. The findings suggest that Emergency Arbitration fulfils an important
purpose, providing urgent/conservatory relief to the parties; consequently, the term
‘award’ in the NY Convention needs to be read expansively ensure the enforceability of
these decisions.
§5.01 INTRODUCTION
P 67 International arbitration continues to metamorphose and adapt to contemporary needs
P 68 of dispute resolution, ushering increased discussion on the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (NY Convention),
adopted 60 years ago. Interesting variations – for instance, the emergency arbitration
mechanism – continue to attract scholarly attention to this form of dispute resolution.
More than a decade since the recognition of emergency arbitration, (1) the arbitration
world is addressing a curious existential question: are the orders of the emergency
arbitrator enforceable? By extension, are these orders to be considered ‘awards’?
Notwithstanding its increasing presence within national legislation and arbitral
institutions’ rules, the mechanism envisaged for urgent relief/interim
measures/conservatory relief faces doubts on the status and enforceability of emergency
arbitrators’ decisions, especially within the context of the NY Convention. (2) The purpose
of this chapter, as its title suggests, is to examine the compatibility of this mechanism
with the framework of the NY Convention. The chapter, therefore, seeks to map the legal
regime addressing this mechanism, where it exists, within domestic legal systems and the
institutional rules of arbitral institutions. Specifically, it considers articulations on the
character of the emergency arbitrator’s decision. Adopting a comparative perspective,
the chapter presents the importance and methodology of articulating the term ‘award’, in
the context of emergency arbitration, to ensure compatibility with the NY Convention.
The chapter is structured in three parts. Following this introduction, the first part briefly
outlines the scheme for recognizing and enforcing foreign arbitral awards under the NY
Convention. The second part traces the development of the emergency arbitration
mechanism and explores the law in different jurisdictions, addressing the status of the
emergency arbitrator’s order/award under either domestic arbitration statutes or
domestic case law. The discussion in this part reveals an uneasy relationship between the
emergency arbitration mechanism and the NY Convention. Finally, as part of its
conclusion, the chapter seeks to present a methodology for ensuring that this fairly new
development in international arbitration is compatible with the NY Convention.
P 68
P 69
§5.02 THE SCHEME OF RECOGNIZING AND ENFORCING FOREIGN ARBITRAL
AWARDS UNDER THE NY CONVENTION
As per Article I(1), the NY Convention is only applicable to foreign arbitral awards: those
‘made in the territory of a State other than the State where the recognition and
enforcement of such awards are sought’. Such awards must address disputes between
natural or juristic persons. An agreement that forms the basis for parties to refer their
disputes to arbitration and on which basis the arbitration award is subsequently made
must be ‘in writing’. This is defined loosely in Article II to encompass ‘an arbitral clause in
a contract or an arbitration agreement, signed by the parties or contained in an exchange
of letters or telegrams’. (3) Provided that the award complies with formality requirements
regarding authentication and certification or translation, (4) the award must be
recognized and enforced by the State Parties to the NY Convention. (5) Yet Article V
provides several grounds for refusing to recognize or enforce an arbitral award: the
incapacity of one of the parties or invalidity of the arbitration agreement; (6) improper
notice of the arbitration to the party against whom the award is invoked; (7) excessive
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 scope of the award (beyond the scope of the submission); (8) irregularity in procedure or
improper composition of the tribunal; (9) and the award being non-binding or non-final.
(10) It is this last ground of the non-finality of the award that raises concerns regarding
emergency arbitration.

§5.03 THE EMERGENCY ARBITRATION MECHANISM AND ITS STATUS UNDER

DOMESTIC LAWS
Emergency arbitration emerged, fairly recently, to give parties an alternate venue to seek
interim or provisional relief in an expedited manner. (11) Traditionally, a party seeking
interim/conservatory relief only had recourse to courts. However, for various reasons,
national courts may not be the best available option for a party: for instance, the party
may not favourably consider the forum possessing jurisdiction, have concerns like, for
instance, the language of the courts, or be required by national civil procedures to use
P 69 local counsel. (12) Different institutions and, increasingly, national legislatures have
P 70 developed the emergency arbitration mechanism as one provisional arbitral measure.
(13) Provisional measures are designed to ensure fairness in the arbitral process, for
example, by preventing one party in the process of removing assets from the country or
interfering with evidence. (14) The emergency arbitration mechanism precedes the
composition of the arbitral tribunal that will decide on the merits of the dispute. (15) As
its name suggests, this mechanism can only be triggered by an applicant for
demonstrably urgent measures. (16)

[A] The Nature of Emergency Arbitration

A few preliminary questions regarding the genesis of this mechanism need to be
addressed:
(a) What exactly is an ‘emergency arbitration’?
(b) Is it part of the main arbitration or a separate proceeding?
(c) Is it arbitration at all?
(d) Do parties need to agree separately to an emergency arbitration?
Emergency arbitration, like any other arbitration, is ‘a creature of consent’; (17) hence, the
arbitrator derives their power from the agreement to arbitrate. As the subsequent
discussion will elaborate, few courts have enforced emergency arbitrators’ decisions, (18)
thus meriting consideration of the nature of this mechanism.
Constitution of the arbitral tribunal can be a lengthy process, and a party might need
emergency relief before the tribunal is constituted. However, it should be noted that
access to an emergency arbitrator is not intended to preclude recourse to national courts
for interim relief. (19)

[B] Emergency Arbitration: Institutional Rules

Since the International Centre for Dispute Resolution (ICDR) Rules were issued by the
American Arbitration Association in 2006, the emergency arbitration mechanism has
P 70 gained much traction. The ICDR Rules confer the emergency arbitrator with broad powers
P 71 to issue a decision in the form of an award or order granting ‘any interim or
conservancy measures that the emergency arbitrator deems necessary, including
injunctive relief and measures for the protection or conservation of property’. (20)
Similarly, the Swiss Institute of Arbitration Rules specifies the structure for appointing
the emergency arbitrator and the procedure that they and the parties must follow. Article
43, reads:
1. Unless the parties have agreed otherwise, a party requiring urgent interim
measures pursuant to Article 26 before the arbitral tribunal is constituted may
submit to the Secretariat an application for emergency relief proceedings
(hereinafter the ‘Application’).
[…]
6. The emergency arbitrator may conduct the emergency relief proceedings in
such a manner as the emergency arbitrator considers appropriate, taking into
account the urgency inherent in such proceedings and ensuring that each
party has a reasonable opportunity to be heard on the Application.
[…]
8. A decision of the emergency arbitrator shall have the same effects as a
decision pursuant to Article 26. Any interim measure granted by the
emergency arbitrator may be modified, suspended or terminated by the
emergency arbitrator, or after transmission of the file to it, by the arbitral
tribunal.
[…]
10. Any measure granted by the emergency arbitrator ceases to be binding on
the parties either upon the termination of the emergency relief proceedings

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 pursuant to Article 43(3), upon the termination of the arbitral proceedings, or
upon the rendering of a final award, unless expressly decided otherwise in the
final award.
11. The emergency arbitrator may not serve as arbitrator in any arbitration
relating to the dispute in respect of which the emergency arbitrator has acted,
unless otherwise agreed by the parties.
However, the status of the emergency arbitrator’s orders/awards is convoluted since their
treatment varies across the rules of different arbitral institutions. The Stockholm
Chambers of Commerce Arbitration Rules 2017 provide for emergency arbitration. (21) As
per Article 8, Appendix II, the emergency arbitrator’s orders take the form of a decision
not an award. The finality of such decision is unclear, especially when read according to
P 71 Article 9, Appendix II, (22) which specifies that the decision is binding on the parties but
P 72 might be amended or revoked by the emergency arbitrator upon a reasoned request
by a party and shall also cease to be binding in enumerated instances.
The China International Economic and Trade Arbitration Commission (CIETAC) Arbitration
Rules, 2015 provide for the emergency arbitration mechanism, but it do not clearly offer
to classify the conservatory relief ordered by the emergency arbitrator as an award.
Article 23 reads:
2. In accordance with the applicable law or the agreement of the parties, a
party may apply to the Arbitration Court for emergency relief pursuant to the
CIETAC Emergency Arbitrator Procedures (Appendix III). The emergency
arbitrator may decide to order or award necessary or appropriate emergency
measures. The decision of the emergency arbitrator shall be binding upon
both parties.
The relevant parts of Article 9B of the London Court of International Arbitration (LCIA)
Rules (2014) provide: (23)
9.9. An order of the Emergency Arbitrator shall be made in writing with
reasons. An award of the Emergency Arbitrator shall comply with Article 26.2
and, when made, take effect as an award under Article 26.8 (subject to Article
9.11). The Emergency Arbitrator shall be responsible for delivering any order or
award to the Registrar, who shall transmit the same promptly to the parties by
electronic means, in addition to paper form … .
On the other hand, the current version of the Arbitration Rules of the International
Chamber of Commerce (ICC) falls short of regarding the emergency arbitrator’s order as
an award. This is reflected in the relevant parts of Article 29: ‘The emergency arbitrator’s
decision shall take the form of an order. The parties undertake to comply with any order
made by the emergency arbitrator.’ (24)
While the rules of some arbitral institutions, such as the LCIA, use the term ‘award’, is an
order made by an emergency arbitrator an ‘award’ as such under the NY Convention
regime?
The nature of emergency arbitration is closely linked with the enforceability of the
emergency arbitrator’s orders, which is discussed in the next section. It is certainly
evident that, over the decade of its existence, the mechanism has gained much
acceptance in national laws and arbitral institutional rules. (25)
P 72
P 73
[C] Emergency Arbitration and Enforceability
As per the NY Convention, an enforceable award is a decision given by an arbitral
tribunal established in accordance with the arbitration agreement, is binding upon the
parties to such arbitration, and is final. Emergency arbitrators’ decisions fulfil the first
and second criteria. (26) To understand whether the nature of finality could be attributed
to emergency arbitrators’ decisions, this research maps the available enforcement
procedures:
(a) through national arbitration laws that provide for the enforcement of emergency
arbitrators’ decisions, as seen in the Netherlands, (27) Singapore, (28) and Hong
Kong; (29)
(b) via the NY Convention route, as seen in the USA; and
(c) through applying, by analogy, existing provisions of national arbitration laws for
recognizing and enforcing interim measures granted by arbitral tribunals to
emergency arbitrators’ decisions. Analogous application might be problematic in
regimes that focus on the form, rather than just the substance, of the emergency
arbitrator’s decision. The emergency arbitration mechanism differs significantly in
form from the arbitral tribunal – e.g., arbitrators are appointed by the institution –
and is part of the pre-arbitral stage.
[1] Emergency Arbitration: National Laws

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 A sample of the legislative provisions in various jurisdictions is discussed here to
contextualize the important issue of the enforceability of emergency arbitrators’
decisions.
In Hong Kong, section 22B(1) of the Arbitration Ordinance (Cap. 609) states: (30)
Any emergency relief granted, whether in or outside Hong Kong, by an
emergency arbitrator under the relevant arbitration rules is enforceable in the
same manner as an order or direction of the Court that has the same effect,
but only with the leave of the Court.
This provision must be read with caution as it represents a domestic policy of Hong Kong
towards emergency arbitrators’ orders. This statute does not flow or originate from the NY
P 73 Convention, and hence it does not represent how the NY Convention should be
P 74 interpreted. This is important because some State Parties to the NY Convention do not
have domestic legislation addressing the status of emergency arbitrators’ orders.
In Singapore, the International Arbitration Act (Cap. 143A) was amended in 2012. Under
this statute, the term ‘arbitral tribunal’ is defined in section 2(1) to encompass ‘an
emergency arbitrator appointed pursuant to the rules of arbitration agreed to or
adopted by the parties including the rules of arbitration of an institution or organisation’.
(31)
On 25 June 2015, Bolivia amended its Conciliation and Arbitration Law No. 708 to add
specific provisions on emergency arbitrators. In addition to detailing emergency
arbitrators’ powers and procedures to be followed, (32) the law states that if judicial
assistance is required, the competent judge will order such assistance within three days
of notification of the decision by the arbitral institution. (33) The competent judge is only
empowered to review whether the issued decision conforms to the following rules of
public order: it may only affect the goods, rights, and obligations of the parties, and the
request for arbitration must be filed within 15 days of the interim order. (34)
On the other hand, both the United Kingdom’s Arbitration Act 1996 and Australia’s
International Arbitration Act 1974 (Cth) are silent on the status of the emergency
arbitrator’s order.
There does, though, seem to be at least one case in Australia in which the emergency
arbitrator’s award was enforced: (35) the decision of the Supreme Court of Victoria in
Giedo van der Garde BV and Another v. Sauber Motorsport AG. (36) However, another
Australian authority seems to offer an opposing view. (37)
The Giedo case involved enforcement of an award from an emergency arbitrator in
Switzerland, ordering the respondent to refrain from doing anything which would prevent
Mr van der Garde from participating as a driver in a motor racing competition. (38) The
respondent did not challenge the finality of the award, and Croft J did not discuss this in
the course of his judgment. There was also no analysis on the status of the emergency
arbitration award. Rejecting the respondent’s arguments that the award exceeded the
scope of the original submission and was founded on non-arbitrable issues, and thus
contrary to public policy, Croft J proceeded to enforce the emergency arbitrator’s award
with no elaboration on the reasoning for doing so. (39) It is, therefore, highly dubious that
this case represents the position in Australia on the status of emergency arbitrators’
awards. Yet the case to which Born refers in his treatise, Re Resort Condominiums
International Inc, (40) did not involve the emergency arbitrator mechanism.
P 74
P 75
Re Resort Condominiums involved disputes over a timeshare licence agreement
concerning resorts and condominiums. (41) The licence agreement contained an
arbitration clause referring claims or disputes to arbitration in the City of Indianapolis,
US. (42) The arbitrator made an ‘Interim Arbitration Order and Award’ ordering the
respondents to do or refrain from doing certain things. (43) Deciding upon the
enforcement application, Lee J. commenced his analysis by referring to section 3 of the
International Arbitration Act 1974 (Cth), the relevant part of which provides: (44)
arbitral award has the same meaning as in the Convention.
arbitration agreement means an agreement in writing of the kind referred to in
sub-article 1 of Article II of the Convention.
Foreign award means an arbitral award made, in pursuance of an arbitration
agreement, in a country other than Australia, being an arbitral award in
relation to which the Convention applies.
This prompted Lee J. to further analyse the language of Article I of the NY Convention,
which reads: (45)
1. This Convention shall apply to the recognition and enforcement of arbitral
awards made in the territory of a State other than the State where the
recognition and enforcement of such awards are sought, and arising out of
differences between persons, whether physical or legal. It shall also apply to
arbitral awards not considered as domestic awards in the State where their

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 recognition and enforcement are sought.
2. The term ‘arbitral awards’ shall include not only awards made by arbitrators
appointed for each case but also those made by permanent arbitral bodies to
which the parties have submitted.
3. When signing, ratifying or acceding to this Convention, or notifying extension
under Article X hereof, any State may on the basis of reciprocity declare that it
will apply the Convention to the recognition and enforcement of awards made
only in the territory of another Contracting State. It may also declare that it
will apply the Convention only to differences arising out of legal relationships,
whether contractual or not, which are considered as commercial under the
national law of the State making such declaration.
The judge pointed out that Article I uses the term ‘differences’. This term suggests the
award is relevant to ‘the subject matter of the dispute referred by the parties to
arbitration’, rather than procedural orders which do not address disputes. (46) The judge
P 75 drew further support for this line of reasoning from Article V(1)(e) of the NY Convention:
P 76 (47)
1. Recognition and enforcement of the award may be refused, at the request of
the party against whom it is invoked, only if that party furnishes to the
competent authority where the recognition and enforcement is sought, proof
that …
(e) The award deals with a difference not contemplated by or not falling within
the terms of the submission to arbitration … .
The judge interpreted this provision of the NY Convention as pointing to ‘an award which
has determined some or all of the issues submitted to the arbitrator for determination,
rather than to an interlocutory order …’. (48)
Lee J’s textual analysis and interpretation of the NY Convention appears convincing.
There is no apparent reason why this full-reasoned decision should not be equally
applicable to the award or order rendered by the emergency arbitrator, which is likewise
interim in nature.
[2] Emergency Arbitrators’ Decisions as Enforceable Awards: Jurisprudence from the US
US courts have recognized that the standard of review for interim relief requests before
an arbitral tribunal could differ from that applied by national courts at the seat of the
arbitration. According to Hanessian and Dosman, this could result in arbitral tribunals
fashioning relief that courts would be unable to grant. (49) In Rocky Mt. Biologicals, Inc.,
(50) the Montana Court dismissed a request to set aside an emergency arbitrator’s order
for procedural reasons, citing the parties’ selection of the arbitral forum as the basis for
refusing to interfere with the order. Bassler discusses different authorities from the US
addressing the issue of interim awards. (51) However, only two of the authorities he cites
specifically addressed the emergency arbitration award: (52) Chinmax Medical Systems
Inc v. Alere San Diego, Inc (formerly known as Biosite Incorporated) (53) and Yahoo! Inc v.
Microsoft Corporation. (54) However, neither case addressed the effect of the emergency
arbitrator’s award within the context of the NY Convention.
Chinmax Medical Systems concerned the non-renewal of a distribution agreement. The
P 76 arbitration agreement between the parties provided for arbitration under the
P 77 ‘International Dispute Resolution Procedures and Arbitration Rules of the American
Arbitration Association’. It also stipulated that either party could resort to the court for
any interim or provisional relief. When Chinmax sought to commence arbitration, Alere
sought an interim emergency award pursuant to Article 37 of the International Dispute
Resolution Procedures. (55) The emergency arbitrator made certain orders. In analysing
these orders, Hayes J. drew attention to two provisions within them: (1) ‘in order to
facilitate any consideration by the full panel of conservancy or other orders … Chinmax
shall provide to Alere the following information within ten (10) days …’; and (2) ‘[t]his
Order shall remain in effect pending review of the full arbitration tribunal, once
appointed, and thereafter as the tribunal may order’. (56) Based on these provisions, the
judge concluded that the interim orders were non-final in nature. The judge drew further
support for this conclusion from Article 37 of the Procedures, which provides inter alia
that once the arbitration tribunal is formed, it ‘may reconsider, modify, or vacate the
interim award or order of emergency relief issued by the emergency arbitrator’. (57)
Likewise, in Yahoo! Inc, the judge analysed the nature of the emergency arbitrator’s order.
In this case, the order’s purpose was to compel the resumption of activities in Hong Kong
and Taiwan for merging the search engine system. (58) The judge found that the order was
intended to restore the activities in Hong Kong and Taiwan and was final in nature. (59)
Hence the judge confirmed the order. (60)
The US courts’ interpretation of final is based on the idea that when analysing a specific
interim measure request, the emergency arbitrator duly considered all pertinent
information to resolve the merits of that request. Will it then follow, as a necessary
corollary, that the decision regarding the interim measure requested would be final and
binding? If so, then an emergency arbitrator’s order is arguably enforceable as an interim

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 measure that fulfils the NY Convention’s criteria of being binding on the parties and final
as to its procedure. The above-discussed jurisprudence allows a derivation that each
order or award should be subject to individual analysis, but the question remains of how
this approach is compatible with the scheme of the NY Convention.
[3] Enforceability of Emergency Arbitrators’ Decisions Through Analogous Orders
P 77 Jurisprudence on the enforcement of emergency arbitrators’ decisions is scarce (61) and
P 78 characterized by diverse opinions on their enforceability. According to commentators,
their enforceability depends on the judicial treatment of arbitral tribunals’ interim
measures, which varies across jurisdictions. (62) Interestingly, while some countries do
not distinguish between interim measures and a final award, others treat them
differently. For instance, interim measures ordered by arbitral tribunals are
unenforceable in Russia, where the stated position has been that only final awards are
enforceable. (63) While the Finnish Arbitration Act has no provisions on the enforceability
of arbitrator-ordered interim measures, such measures are not considered enforceable
awards. (64)
Article 17H of the United Nations Commission on International Trade Law (UNCITRAL)
Model Law differs from the NY Convention by calling for the recognition and enforcement
of tribunal-ordered interim relief, except on the grounds expressly listed therein. In
Braspetro Oil Services Company v. The Management and Implementation Authority of the
Great Man-Made River Project, (65) an ICC Tribunal had passed an interim ‘order’ refusing
to re-examine a certain aspect of the case, even after potentially relevant new
documents appeared. On reviewing the appeal from this order, the Cour d’Appel in Paris
held that whether an order qualifies as an award does not depend on the terms used by
the arbitrators and the parties. It further held that the tribunal had handed down a
‘reasoned decision’, (66) in which it had considered, in detail, the arguments of the
parties and had solved, in a final manner, the dispute between them on the admissibility
of the request for a review. The court made an important contribution to the literature on
this issue: an order’s characterization is immaterial, and courts hearing an enforcement
application would prefer the substance to the form, irrespective of the tribunals labelling
the decision as an order.
The subsequent judgment of the Cour d’Appel in Societe Nationale des Petroles du Congo
et Republique du Congo v. Societe Total Fina Elf E & P Congo (67) characterized the legal
nature of an ICC pre-arbitral reference, a contractual feature, as ‘la chose convenue’. (68)
P 78 The court distinguished the contractual from the jurisdictional nature of the pre-arbitral
P 79 reference, stating that the reference did not indicate the possibility of an arbitration
and that the sole purpose of the agreement between the parties was to vest the third
party with the power to decide urgent measures/conservatory relief. Hence the court
declined to allow any binding effect nor any res judicata effect to the pre-arbitral
referee’s order. (69)
Much discussion followed the Total Fina decision. (70) It was criticized for being overly
formalistic, preferring form over substance to find that the agreement was contractual
and not jurisdictional. (71) Arbitration agreements are necessarily contractual, but that
does not remove the jurisdictional nature of the agreement as arbitrators also exercise
jurisdictional functions.
There is interesting diversity in jurisprudence on the analogous application principle.
Germany has taken the approach of an exequatur model, whereby parties can apply to
the court to transform the tribunal’s order for relief into a court order for similar relief.
(72) Contrarily, the English Commercial Court held in Gerald Metal S.A. v. Timis & Ors. (73)
that urgent interim relief may not be available from the court where emergency
arbitration provisions are available under the applicable procedural rules (in this case,
the LCIA Rules applied).
Interestingly, in India, there have been mixed signals on the enforceability of emergency
arbitrators’ decisions via the analogous application principle. In Raffles Design
International India Pvt Ltd & Anr. v. Educomp Professional Education Ltd. & Ors., (74) the
Delhi High Court ruled against enforcing an emergency arbitration award under the
Arbitration and Conciliation Act, 1996. However, it suggested that the parties could apply
for interim measures under section 9 of the Act before Indian courts. By contrast, in the
judgment of Bombay High Court in HSBC Pi Holdings (Mauritius) Ltd. v. Avitel Post Studioz
Ltd. & Ors., (75) interim measures similar to an emergency arbitrator’s decision were
ordered. This inconsistency in the approach of Indian courts is surprising since India’s
arbitration law is based on the UNCITRAL Model Law, and section 17 of the Arbitration and
Conciliation Act, 1996 (drafted similarly to the Model Law’s Article 17H) discusses interim
measures. In the absence of a legislative statement or a precedent from the Supreme
Court of India, these two cases demonstrate the enforcement-related concerns that could
arise from the analogous orders principle.
P 79 The Law Commission of India has called for legislative sanction to rules of institutional
P 80 arbitration which recognize the concept of an emergency arbitrator – the report
suggested broadening the definition of an arbitral tribunal under section 2(d). (76) It has
also suggested amending the legislation (77) to ensure the enforceability of decisions
made under institutional rules providing for emergency arbitration:

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 (i) In sub-section (1), clause (d), after the words ‘… panel of arbitrators’ add
‘and, in the case of an arbitration conducted under the rules of an institution
providing for appointment of an emergency arbitrator, includes such
emergency arbitrator’; [NOTE: This amendment is to ensure that institutional
rules, such as the SIAC Arbitration Rules, which provide for an emergency
arbitrator, are given statutory recognition in India.] (78)
Ukrainian courts have recently contributed to the discussion on enforcing emergency
arbitrators’ decisions. Naumann Maschinen und Paletten v. Bruma LLC (79) concerned the
recognition and enforcement of interim measures granted by the Arbitration Court of the
Chamber of Commerce and Industry of Heilbronn-Franken and the German Arbitration
Institute (DIS). These measures ordered Bruma LLC to refrain from disposing of technical
equipment provided by Naumann and from selling/transferring/shipping pallets
manufactured by Bruma LLC to any third parties. The first instance court in Ukraine
granted recognition and enforcement of the interim arbitral award in its ruling on 2
October 2015. The court found that the type and scope of the interim measures granted
by the interim arbitral award were proportionate to the claims of Naumann Maschinen
and Paletten filed before the arbitral tribunal. The court also found as sufficient for
granting recognition and enforcement the fact that the interim arbitral award included
the reasoning on the necessity for the immediate application of the interim measures
based on the claims of Naumann Maschinen and Paletten and the scope of infringed
rights. Separately though, it needs to be mentioned here that the Court of First Instance
subsequently cancelled the interim measures due to new findings in the case that
revealed lack of competence of the arbitral tribunal, owing to discrepancies in the
arbitration agreement.
In JKX Oil & Gas plc, Poltava Gas B.V. and JV Poltava Petroleum Company v. Ukraine, (80)
the respondent’s failure to comply with obligations under the Energy Charter Treaty, the
UK-Ukraine BIT (1993), and the Netherlands-Ukraine BIT (1994) had led to the initiation of
P 80 emergency arbitration under the Stockholm Chamber of Commerce (SCC) Rules. The
P 81 award of provisional measures against Ukraine was upheld by the Pecherski District
Court, which found that the emergency arbitrator’s decision did not differ from a foreign
arbitral award and the grounds for its enforcement, as spelt out in the NY Convention.
Although this decision has since been appealed, the questions for appeal do not include
the enforceability of an emergency arbitrator’s decision. Nevertheless, the judgment has
two major implications. First, as well as being the first known enforcement of an
emergency arbitrator’s decision against a State, this enforcement was obtained in the
same State. Second, the judgment set a precedent as being the first attempt to recognize
and enforce an arbitral award issued by an emergency arbitrator in Ukraine.

§5.04 THE WAY FORWARD

[A] Expansive Articulation of ‘Arbitral Award’
Enforcing emergency arbitrators’ decisions through the NY Convention would require a
wider articulation of the finality requirement to allow for interim awards on provisional
measures. For an award to be final, it must address at least one of the issues pleaded by
the parties, (81) even if the decision has only a temporary effect. (82) Interim measures,
provisional measures, and conservatory relief are among the tools of arbitrators, helping
to safeguard the parties’ rights against immediate and irreparable harm pending the
resolution of the dispute. It is, therefore, important that State courts enforce them. In
Pacific Reinsurance Mgmt. Corp. v. Ohio Reinsurance Corp., (83) the US Court of the Ninth
Circuit made an interesting observation supporting the finality of interim relief orders
from an arbitral tribunal:
Temporary equitable orders calculated to preserve assets or performance
needed to make a potential final meaningful … are final orders that can be
reviewed for confirmation and enforcement. (84)
Since the emergency arbitration mechanism functions for the same principal reason – to
decide upon the grant of urgent interim relief requested by the applicant – the finality
requirement ought to be expansively articulated to include emergency arbitrators’
orders. Guidance on articulating the ‘finality’ of an arbitral award can be found in the
decision of the Singapore Court of Appeal in PT Perusahaan Gas Negara (Persero) TRK v.
CRW Joint Operation, (85) in which the enforceability of a decision by the International
Federation of Consulting Engineers (FIDIC) Dispute Adjudication Board (DAB) was
P 81 challenged. In deciding on the enforceability of the DAB order made under FIDIC Rules,
P 82 the court held that the order was contractually binding upon and enforceable by the
parties, though it could be challenged before an arbitral tribunal. The majority opinion
considered the manner of interpreting the ‘finality of the award’ under section 19B,
International Arbitration Act, and adopted a broad approach. The court reiterated that
all awards, regardless of the stage of arbitration at which they are issued, have the effect
of being final and binding. It stated that the legislative provision does not operate to
render interim awards unenforceable. Noting the existence of three awards predating the
final award, the court explained that these awards each dispose of claims presented in
the dispute:

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 Partial awards are awards that finally dispose of part, but not all, of the
parties’ claim(s) in arbitration; they leave some parts of the claim(s) for
determination in future proceedings in the arbitration.
Interim awards are awards that do not dispose finally of a particular claim,
but instead decide a preliminary issue relevant to the final disposal of such
claim (e.g., … the construction of a particular provision in a claim for
contractual breach).
Provisional awards are awards that are intended to preserve a factual or legal
situation so as to safeguard a party’s rights while the merits of a dispute are
being decided. For example, they may (a) maintain the status quo, (b)
preserve assets, and (c) preserve evidence. (86)
Extensively elucidating its nuanced understanding of the methodology of awards, the
court pointed out that the ‘final’ award could be defined as one of the following:
an award with a preclusive effect that prevents a claim or matter from being
re-litigated. In this sense, even provisional awards may be ‘final’ because a
particular request for relief may not be re-litigated after it is disposed of.
… Even awards granting provisional relief can be considered to be ‘final’,
notwithstanding the fact that they will be superseded by subsequent relief,
because they finally dispose of a particular request for relief. … [E]very award
rendered during the course of an arbitration, before its final conclusion, is
‘final’ because of the preclusive effect that it enjoys. (87)
awards that have achieved a sufficient degree of finality in the arbitral seat.
For example, they may no longer susceptible to being appealed against or
subject to annulment proceedings in the arbitral seat, as in awards that have
achieved exequatur or are no longer susceptible to challenge or annulment at
the seat. (88)
the last award made in an arbitration which disposes of all the remaining
claims. This is a final award in the sense used in Article 32(1) of the Model Law.
(89)
P 82
P 83
The court further observed that ‘[s]ection 19B makes it clear that every award, whatever
type of award it might be, is final and binding on those aspects of the dispute which the
award determines’. (90) As the Singapore Court of Appeal stated in PT First Media TBK
(formerly known as PT Broadband Multimedia TBK) v. Astro Nusantara International BV and
others and another appeal: (91)
Parliament’s intention to align the effect of interim awards with that of final
awards was driven by its object of providing that all awards – interim and final
– should reflect the principle of finality. What this meant was that an award,
once issued, was to be final and conclusive as to the merits of the subject-
matter determined under that award; and it could thereafter only be altered
in the limited circumstances provided for in Arts 33 and 34(4) of the Model
Law. This is nothing more than another way of saying that the issues
determined under the award are res judicata.

[B] Conclusion
Given the necessity of emergency arbitration, decisions emanating from emergency
arbitration tribunals should be characterized as awards under the NY Convention since
they resolve any of the issues presented by the parties, even if their decisions have only a
temporary effect. It should be noted that the NY Convention does not expressly require
‘finality’ for an arbitral award to be enforceable. Nevertheless, given the importance
states attribute to the idea of the arbitrary award’s ‘finality’, the emergency arbitrators’
decision ought to be recognized as an award finally disposing of the claim presented
before it, remaining so until the same has been referred to the arbitral tribunal/national
court for any challenge/review. The emergency arbitration mechanism serves the
important purpose of addressing urgent conservatory relief; hence, by denying the
enforceability of decisions or requiring a circuitous route to enforcement through re-
presenting to national courts, the purpose that explains the mechanism’s existence
would be impaired. As per the Brasperto ratio, allowing emergency arbitrators’ decisions
to be enforced via the NY Convention route would reinforce the philosophy of arbitration:
expedited effective justice without the unnecessary trappings of legal technicalities.
P 83

References

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 *) The authors acknowledge the research assistance of (1) Gautam Mohanty, Arbitration
Associate to Justice Deepak Varma, Former Judge, Supreme Court of India, and (2) MZ
Ashraful, Research Student, South Asian University, India.
1) The International Chamber of Commerce (ICC) introduced an opt-in Pre-arbitral
Reference in 1990, following which the Netherlands Arbitration Institute introduced
Summary Arbitral Proceedings into its rules in 2001. However, when introduced in
2006, the International Centre for Dispute Resolution (ICDR) Emergency Measures of
Protection became the first exhaustive rules on emergency arbitration. See, Philippe
Cavalieros & Janet (Hyun Jeong) Kim, Emergency Arbitrators Versus the Courts: From
Concurrent Jurisdiction to Practical Considerations 35 J. Intl. Arb, 275, 276 (2018)
(hereinafter, Cavalieros & Kim); Grant Hanessian & E. Alexandra Dosman, Songs of
Innocence and Experience: Ten Years of Emergency Arbitration, 27 Am. Rev. Intl. Arb.
215, 216 (2016) (hereinafter, Hanessian & Dosman); see, generally, Emmanuel Gaillard
& Philippe Pinsolle, The ICC Pre-arbitral Referee: First Practical Experience, 20(1) Arb.
Intl. 13-14, 24 (2004); Patricia Shaugnessy, ‘Chapter 32: The Emergency Arbitrator’ in
Patricia Shaughnessy and Sherlin Tung (eds), The Powers and Duties of an Arbitrator:
Liber Amicorum Pierre A. Karrer (Kluwer Law International 2017) 339-348 (hereinafter,
Shaugnessy); Ben Giaretta, The Practice of Emergency Arbitration, 2017 (1) Belgian Rev.
Arb. 83 (2017).
2) See, generally, Fabio G. Santacroce, The Emergency Arbitrator: A Full-Fledged
Arbitrator Rendering an Enforceable Decision?, 31 Arb. Int. 283 (2015).
3) Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Article
II(2) (New York, 1958).
4) Ibid., Article IV.
5) Ibid., Article III.
6) Ibid., Article V(1)(a).
7) Ibid., Article V(1)(b).
8) Ibid., Article V(1)(c).
9) Ibid., Article V(1)(d).
10) Ibid., Article V(1)(e).
11) Daniel de Andrade Levy, ‘Emergency Arbitrators: Characters in Search of Author’ in
Andrea Menaker (ed.), International Arbitration and the Rule of Law: Contribution and
Conformity, ICCA Congress Series, vol. 19, 180 (Kluwer Law International, 2017).
12) Shaughnessy, supran. 1, at 339. Interestingly, in India, the Advocates Act, 1961 does
not allow foreign law firms or foreign counsel to appear before Indian courts. See
also, Bar Council of India v. AK Balaji and others, Civil Appeal Nos 7875-7879 of 2015;
Association of Indian Lawyers v. M/S LCIA and Others, Civil Appeal No. 7170 of 2015;
Global Indian Lawyers v. Bar Council of India and Others, Civil Appeal No. 8028 of 2015.
13) Gary B. Born, International Commercial Arbitration Volume II: International Arbitral
Procedures, 2451 (2nd ed., Wolters Kluwer 2014).
14) Ibid., 2426.
15) Santacroce, supran. 2, at 284.
16) Ibid., at 285.
17) Nigel Blackaby, Constantine Partasides, Alan Redfern & Martin Hunter, Redfern and
Hunter on International Arbitration, 2.01 (6th ed., OUP 2015).
18) Ank Santens & Jaroslav Kudrna, The State of Play of Enforcement of Emergency
Arbitrator Decisions, 34 (1) J. Intl. Arb. 1, 10-11 (2017).
19) Cavalieros & Kim, supran. 1, at 276.
20) ICDR International Arbitration Rules, Article 37(5) (since 1 June 2014, Article 6(4)).
21) An emergency arbitration mechanism was first introduced into the SCC Arbitration
Rules in 2010. The 2017 version includes rules related to emergency arbitration in
Appendix II. Article 1 reads:
(1) A party may apply for the appointment of an Emergency Arbitrator
until the case has been referred to an Arbitral Tribunal pursuant to
Article 22 of the Arbitration Rules.
(2) The powers of the Emergency Arbitrator shall be those set out in
Article 37 (1)-(3) of the Arbitration Rules. Such powers terminate on
referral of the case to an Arbitral Tribunal pursuant to Article 22 of
the Arbitration Rules, or when an emergency decision ceases to be
binding according to Article 9 (4) of this Appendix.

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 22) Article 9 reads:
(2) At the reasoned request of a party, the Emergency Arbitrator may
amend or revoke the emergency decision.
[…]
(4) The emergency decision ceases to be binding if: (i) the Emergency
Arbitrator or an Arbitral Tribunal so decides; (ii) an Arbitral Tribunal
makes a final award; (iii) arbitration is not commenced within 30
days from the date of the emergency decision; or (iv) the case is not
referred to an Arbitral Tribunal within 90 days from the date of the
emergency decision.
(5) An Arbitral Tribunal is not bound by the decision(s) and reasons of
the Emergency Arbitrator.
23) London Court of International Arbitration, LCIA Arbitration Rules (2014),
http://www.lcia.org/dispute_resolution_services/lcia-arbitration-rules-2014.aspx
(accessed 12 June 2018).
24) International Chamber of Commerce, Arbitration Rules, https://iccwbo.org/dispute-
resolution-services/arbitration/rules-of-arbitration/ (accessed 17 May 2018).
25) Santens & Kudrna, supran. 18, at 3-4; Shaugnessy, supran. 1, at 341.
26) Santacroce, supran. 2, at 303. Note here that the NY Convention uses the term ‘award’
and not ‘decision’ or ‘measure’.
27) Dutch Code of Civil Procedure, Article 1043b(2).
28) Singapore International Arbitration Centre (SIAC), International Arbitration Act (Cap.
143A), http://www.siac.org.sg/images/stories/articles/rules/IAA/IAA%20Aug2016.pdf
(accessed 7 May 2018).
29) Hong Kong e-Legislation, Cap. 609 Arbitration Ordinance,
https://www.elegislation.gov.hk/hk/cap609 (accessed 18 May 2018).
30) Ibid., See also, Michael Dunmore, The Use of Emergency Arbitration Provisions, 17 Asian
Disp. Rev. 130, 132-133 (2015).
31) Singapore International Arbitration Act, supran. 28.
32) Bolivian Conciliation and Arbitration Law No. 708, Articles 67-71.
33) Ibid., Article 71(II).
34) Ibid., Article 71(II), referring to Articles 67(II)–(III).
35) Resolution Institute, Interim Relief and the Use of Emergency Arbitration,
https://www.resolution.institute/members-area/international (accessed 20 May
2018).
36) [2015] VSC 80; (2015) 294 FLR 367; cited in Ibid.
37) Born,supran. 13, at 2513.
38) (2015) 294 FLR 367.
39) Ibid., 371-374.
40) [1995] 1 Qd R 406; (1993) 118 ALR 655; cited in Born,supran. 13, at 2513.
41) Re Resort Condominiums [1995],supran. 40, at 407-408.
42) Ibid., 408.
43) Ibid., 413-415.
44) Ibid., 418.
45) Ibid., 418-419.
46) Ibid., 419.
47) Ibid., 422.
48) Ibid.
49) Hanessian & Dosman, supran. 1, at 239; see, generally, Erin Thomas, ‘Review of
Emergency Arbitral Relief: Recent Developments in US Case Law’ in Carlos Gonzalez-
Bueno (ed.), 40 under 40 International Arbitration (Dykinson, SL 2018) 349-351.
50) Rocky Mountain Biologicals Inc, and Skyway Purified Solutions, Inc v. Microbix
Biosystems Inc, and Irvine Scientific Sales Company, Inc 986 F. Supp. 2d 1187 (D. Mont.
2013). Also, in Sharp Corporation and Sharp Electronics Corporation v. Hisense USA
Corporation and Hisense International (Hong Kong) America Investment Co. Ltd. 292 F.
Supp. 3d 157 (DC 2017) the US District Court of Columbia did not revisit the merits of
the emergency arbitrator’s decision, thus reinforcing the idea that a decision
rendered by an emergency arbitrator should be seen as final and binding.
51) William G. Bassler, The Enforceability of Emergency Awards in the United States: or
When Interim Means Final, 32 Arb. Int’l. 559 (2016) (hereinafter, Bassler).
52) Ibid., at 569-573.
53) 2011 U.S. Dist. LEXIS 57889.
54) 983 F. Supp. 2d 310; 2013 U.S. Dist. LEXIS 151175.
55) Chinmax Medical Systems,supran. 53, at paras 6-8.
56) Ibid., paras 14, 15, and 7, respectively.
57) Ibid., paras 14 and 8.
58) Yahoo! Inc.,supran. 54, at 314.
59) Ibid., 317.
60) Ibid., 318-319.

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 61) The 2015 Queen Mary/White & Case International Arbitration Survey, titled
Improvements and Innovations in International Arbitration, highlighted that the
effectiveness and popularity of emergency arbitration depend on the enforceability
of decisions rendered by emergency arbitrators. Indeed, 79% of respondents
considered enforceability the most important factor when choosing between State
courts and emergency arbitration to seek urgent relief prior to the arbitral tribunal’s
constitution: at 25,
http://www.arbitration.qmul.ac.uk/media/arbitration/docs/2015_International_Arbi
tration_Survey.pdf (accessed 10 March 2018).
62) Bassler summarizes two diametrically opposed views. According to the first, since
interim awards, including emergency awards, can be rescinded or varied by the
tribunal, they are not final awards that can be judicially enforced. By contrast, the
second view suggests construing the finality requirement to allow courts to enforce
emergency awards/provisional measures. See, Bassler, supran. 51, at 563.
63) Alexey Kostin & Dmitry Davydenko, ‘Chapter 7: Russia’, in Hobér & Kryvoi (eds), Law
and Practice of International Arbitration in the CIS Region, para. 1.161 (Kluwer Law
International 2017).
64) Arbitration Act, section 5(2) (967/1992; amendments up to 754/2015) (unofficial
translation, Ministry of Justice, Finland),
https://www.finlex.fi/fi/laki/kaannokset/1992/en19920967_20150754.pdf (accessed 21
June 2018):
(2) Notwithstanding an arbitration agreement, however, a court or other
authority may before or during the arbitration proceedings grant such
interim orders and prohibitions which the authority has the statutory
power to grant.
65) Cour d’ Appel, Paris, 1 July 1999, Mealey’s International Arbitration Report No. 8 (Fr.).
66) Yves Derains & Eric A. Schwartz, A Guide to the ICC Rules of Arbitration, 31 (Kluwer Law
International 2005).
67) Cour d’ Appel, Paris 2003, 2003(4) Rev. Arb. 343.
68) Ibid.
69) Diana Paraguacuto-Mahéo & Christine Lecuyer-Thieffry, Emergency Arbitrator: A New
Player in the Field – The French Perspective, 40 Fordham Intl. L.J. 749 (2017).
70) Ibid., 765. See also, Baruch Baigel, The Emergency Arbitrator Procedure under the 2012
ICC Rules: A Juridical Analysis, 31(1) J. Intl. Arb. 1 (2014).
71) Paraguacuto-Mahéo & Lecuyer-Thieffry, supran. 69, at 765, 767; Baigel, supran. 70, at 5;
Eliseo Castineira, The Emergency Arbitrator in the 2012 ICC Rules of Arbitration, 1
Cahiers De L’Arbitrage 65 (2012).
72) A. Yesilirmak, Provisional Measures in International Commercial Arbitration, 255
(Kluwer Law International 2005).
73) [2016] EWHC 2327 (Ch).
74) O.M.P (I) (Comm.) 23/2015, CCP(O) 59/2016 and IA Nos 25949/2015, 2179/2016, 7 October
2016.
75) Arbitration Petition No. 1062/2012, 22 January 2014.
76) Law Commission of India, 246th Report on Amendments to the Arbitration and
Conciliation Act, 1996, 17 August 2014,
http://lawcommissionofindia.nic.in/reports/report246.pdf (accessed 10 May 2018).
77) The Arbitration and Conciliation Act, 1996 was amended in 2015; however, the
amendment does not address emergency arbitration. Moreover, in the further
amendment announced by the Indian government in April 2018, there is no
indication that provisions related to emergency arbitration will be included. Given
the diversity in the dicta of India’s higher judiciary, a decision from the Supreme
Court of India could usher clarity on the nature and method of enforceability of
emergency arbitration decisions.
78) supran. 76, at 37.
79) 2015 decision, reported in Global Arbitration News – Ukraine,
https://globalarbitrationnews.com/wp-content/uploads/2017/06/Ukraine.pdf
(accessed 21 January 2018).
80) Case No. 757/5777/15, 8 June 2015, upheld by the Kyiv City Court of Appeal on 16 May
2016, https://www.italaw.com/sites/default/files/case-documents/italaw7391.pdf
(accessed 10 January 2018).
81) Yesilirmak, supran. 72, at 265.
82) Ibid. See also, Santacroce, supran. 2, at 304, where the author argues that the
possibility of the decision being subsequently amended or revoked would not
prevent it being considered final when given.
83) 935 F 2d 1019 (9th Cir. 1991).
84) Ibid., 1023.
85) [2015] SGCA 30, http://www.commonlii.org/sg/cases/SGCA/2015/30.pdf (accessed 10
January 2018).
86) PT Perusahaan, supran. 85, at paras 46, 47, and 49.
87) Ibid., at para. 51.
88) Ibid., at para. 52.

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 89) Ibid., at para. 53. See also, Eugene Tan & Robert Coldwell (Clyde & Co LLP), Another
(Unsuccessful) Challenge to the Finality of Interim Arbitral Awards in Singapore and
Enforcing DAB Decisions on International Projects under FIDIC,
http://arbitrationblog.kluwerarbitration.com/2015/06/15/another-unsuccessful-
challenge-to-the-finali... (accessed 10 January 2018); Dominik Horodyski & Maria
Kierska, Enforcement of Emergency Arbitrator’s Decisions – Legal Problems and Global
Trends, 33 Kwartalnik ADR. Arbitraż i Mediacja. 27, 32 (2016).
90) PT Perusahaan, supran. 85, at para. 205.
91) [2014] 1 SLR 372 (‘First Media’) at para. 140.

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