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

Background

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

Key Features

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

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

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