The leading Arbitration institutions have introduced the possibility of appointing an Emergency Arbitrator in most arbitration rules. These rules are being increasingly used by parties to request interim measures.

Emergency Arbitrator will decide on Interim Measures (including the ICC, the LCIA, the SIAC, the HKIAC, and the SCC). The Arbitration Institute of the Stockholm Chamber of Commerce (“SCC”) has recently seen a significant increase in the number of requests for SCC Emergency Arbitrator.

The SCC has seen a record number of applications for the appointment of an Emergency Arbitrator over the first six months of 2016. A total of 9 applications have been filed, of which two were based on investment treaty protection agreements. If a decision on interim measures is needed to provisionally ensure a party’s claim, prior to the commencement of arbitration, the party may apply to the SCC for the appointment of an Emergency Arbitrator in accordance with the SCC Rules.

Article 26 of the UNCITRAL Rules reads in material part as follows:

An interim measure is any temporary measure by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party without limitation – maintaining or restoring the status quo pending determination of the dispute, taking action that would prevent, or refrain from taking action that is likely to cause.

The party requesting an interim measure should satisfy the arbitral tribunal. There is a reasonable possibility that the requesting party will succeed on the merits of the claim. The determination on this possibility shall not affect the discretion of the arbitral tribunal in making any subsequent determination.

Admissibility

The Emergency Arbitrator indicated that measures with effects equivalent to the definitive relief sought in the main proceedings could not be sought by way of interim relief. That would amount to disposing of the claim on the merits, which is of course impermissible under the emergency proceedings. The Emergency Arbitrator retained that Evrobalt’s requests do not amount to any such disposition, given the explicitly temporary character, which they have, and they are therefore admissible.

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