Emergency Relief in International Arbitration: Concept, Legal Framework, Standards, and Enforcement
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In an emergency, every second counts. Because the formation of the arbitral tribunal can take weeks if not months to complete, parties are keen to apply for urgent interim measures before a court. With an emergency arbitrator, an application for interim measures can be made and heard quickly without recourse to the courts. An emergency decision typically can be reached within days, allowing a party to avoid any risk of exposing the underlying dispute to the public, which could have negative effects.
Emergency Relief in International Arbitration: Concept, Legal Framework, Standards, and Enforcement discusses key aspects of the emergency arbitrator procedure, It primarily aims to assist applicants and respondents with the emergency relief application so they may navigate successfully through the emergency arbitrator procedure, which is often challenging given the urgent circumstances. The work:
(i) ascertains what the applicable legal framework is throughout the process that begins with the emergency relief application, how emergency proceedings are conducted, how these may be followed by a tribunal’s review of the emergency decision, and how this review could result, as the case may be, in the enforcement of emergency proceedings;
(ii) discusses the requirements and the grounds on which one might resist a request for emergency relief;
(iii) considers the grounds for challenging an emergency decision and the tribunal’s powers in this respect,
(iv) analyses the binding effect of emergency decisions and their enforcement, as well as the grounds for review and for opposing the enforcement of an emergency decision.
(v) brings to light the efficacy of emergency proceedings, the role of emergency arbitrators, and the weaknesses and strengths of this apparent intervention in the arbitral process.
The book specifically seeks to address what is novel about the concept of the emergency arbitrator, keeping in mind the issues that respondents to the emergency relief application, emergency arbitrators, members of arbitral tribunals, the judiciary and legislators may face. Where relevant, the concept of the emergency arbitrator is compared with the procedure that an arbitral tribunal would use to grant urgent interim measures, as it serves as a reference for determining what, if anything, in the concept of the emergency arbitrator is different from interim measures, and therefore makes it a worthy tool meriting closer analysis.
Towards that end, the arbitration rules of the leading arbitral institutions that include an emergency arbitrator procedure, such as those of the ICDR, the LCIA, the ICC, the SCC, SIAC, the HKIAC and others are analysed, as well as the relevant legal instruments and case law from Austria, the British Virgin Islands, Finland, France, Germany, Hong Kong, India, Lithuania, the Netherlands, New Zealand, Singapore, Sweden, Switzerland, the People’s Republic of China, Russia, the UK, Ukraine, and the US. The book also studies the UNCITRAL Model Law.
PDF of Title Page and T.O.C.
CONTENTS
Preface
Acknowledgments
About the Author
Chapter 1. The Legal Framework of Emergency Proceedings
1. Introduction
2. Elements of Emergency Proceedings
3. The Laws Applicable to the Internal Elements of Emergency Proceedings
3.1. The Seat of the Emergency Proceedings
3.2. Internal Technical Matters
3.3. Internal Substantive Matters
(i). The Powers of the Emergency Arbitrator
(a). The Power to Grant Emergency Relief
(b). Other Powers of the Emergency Arbitrator
(ii). Specific Powers of the Emergency Arbitrator
(iii). Jurisdiction and Admissibility
(iv). The Powers of the Arbitral Institution and of the Arbitral Tribunal
4. The Laws Applicable to the External Matters of the Emergency Proceedings
4.1. The Interrelationship between Emergency Proceedings and the Applicable Law
4.2. The Technical Powers of the Court During Emergency Proceedings
4.3. The Technical Powers of the Court After Emergency Proceedings
5. Conclusion
Chapter 2. The Standards for Granting Emergency Relief
1. Introduction
2. The Minimum Threshold
2.1. Procedural Requirements
2.2. Notification Requirement
2.3. Prima Facie Jurisdiction
2.4. Urgency
3. Jurisdiction and Admissibility
3.1. Jurisdiction
3.2. Admissibility
4. The Merits of the Application
4.1. Legal Authorities Containing International Standards
(i). Arbitral Decisions
(ii). Codified Best Practices and Reports
(iii). Arbitration Rules
(iv). Legal Commentary
(v). National Law
(vi). Arbitration Law
(vii). The Law Applicable to the Substance of the Dispute
(viii). The Parties’ Agreement
(ix). Conventions and Treaties
4.2. Prima Facie Case on the Merits
4.3. Urgency
(i). Risk of Imminent Harm
(ii). Irreparable, Substantially Serious or Sufficient Harm
(iii). Balance of Convenience
(iv). Emergency
(v). Other Standards
(vi.) Other Available Strategies: Not Responding, Reserving Rights, Consenting
5. Conclusion
Chapter 3. The Binding Effect, Review and Enforcement of Emergency Relief
1. Introduction
2. The Binding Effect of the Emergency Decision
2. 1. The Definitional Approach
2.2. The Form of the Emergency Decision
2.3. The Lack of Finality
(i). Res Judicata: Overview
(ii). Not a Decision “on the Merits”
(iii). Not a “Final” Decision
(a). The Traditional Approach
(b). The Positive Preclusive Effect
(c). The Negative Preclusive Effect
(d). The Effect of the Emergency Decision
(e). The Flexible Approach
3. Review of the Emergency Decision
3.1. Jurisdiction
3.2. Grounds for Review
4. Enforcement of the Emergency Decision
4.1. Specific Regime for the Enforcement of Emergency Relief
4.2. Specific Regime for the Enforcement of Provisional Measures
(i). Singapore
(ii). New Zealand
(iii). Other Jurisdictions
4.3. Indirect Enforceability of the Emergency Decision
5. Conclusion
Bibliography
List of Abbreviations
Table of Cases
Index
Dr. Jane Fedotova is a solicitor of the Senior Courts of England and Wales and of the Eastern Caribbean Supreme Court (Virgin Islands Circuit). She was awarded the Queen Mary University of London degree of PhD (Doctor of Philosophy) and successfully defended her thesis entitled: “The Concept of the Emergency Arbitrator: Is It a Novelty? Meaning of “Emergency”, Legal Framework, Standards and Enforcement of the Emergency Relief”. She continues to pursue her academic interests as an associate lecturer teaching an investment arbitration course provided by the QMUL School of International Arbitration.
Dr. Fedotova’s legal practice at Conyers Dill & Pearman in the British Virgin Islands covers a wide range of commercial, insolvency and arbitration matters, often involving matters arising in the circumstances of urgency relating to asset tracing, breach of contract, and allegations of fraud. International arbitration is part of her daily professional life in the British Virgin Islands, covering a variety of matters from advising clients on all aspects of BVI-seated arbitrations conducted inter alia under the arbitration rules of the British Virgin Islands International Arbitration Centre to appealing and setting aside BVI arbitral awards. An important part of her practice is devoted to matters requiring assistance from the local courts pending commencement of arbitration, in support of ongoing arbitration and at the stage of enforcement of arbitral awards.
She is a member of the Arbitration Committee established under the auspice of the British Virgin Islands International Arbitration Centre and is a Chair of the British Virgin Islands Chapter of the Chartered Institute of Arbitrators. She is the Fellow of the Chartered Institute of Arbitrators.
Being a common law practitioner educated at the University College London (LLM), trained in the leading law firms of London and benefiting from serving as Counsel at the London Court of International Arbitration, she obtained her undergraduate degree in law in a civil law jurisdiction from the Lomonosov Moscow State University, which enriched her understanding of civil law traditions.
Jane Fedotova's Emergency Relief in International Arbitration: Concept, legal Framework, Standards and Enforcement is a truly masterful work. Emergency relief emerged from the practical reality that constitution of a tribunal may take excessively long periods of time during which interim relief may be necessary. Emergency arbitrators represent what could be a simpler and more effective alternative to national courts for this purpose. But the emergency relief system itself raises a host of practical problems which have never been examined comprehensively, making its navigation a real challenge. As the book's title would indicate, the author first sets out the governing legal framework of emergency relief and then tackles the user's two central needs, viz: (a) an understanding of the standards for grant of relief and the grounds on which it can be opposed and (b) appreciation of what effective enforcement of such relief, if granted, entails. This work clearly and systematically presents all that anyone interested in emergency relief could possibly need to know.
—George A. Bermann, Professor, Columbia Law School
The emergency arbitrator is one of the most important procedural innovations in international arbitration in the past two decades. It has also been one of the least carefully examined. Dr. Jane Fedotova's book meets that challenge head on. It works through the emergency arbitrator procedure from beginning to end: the legal framework governing the initial application, the standards for granting relief, and, finally, the binding effect, review, and enforcement of the resulting decision. Her analysis is even-handed as between applicants and respondents, and it is complemented throughout by a comparison to the power of an arbitral tribunal to grant its own interim relief, which is a useful benchmark when exploring what distinguishes this procedure. This is a valuable and much-needed contribution to the literature, and it will be genuinely useful to practitioners, arbitrators, and courts who face emergency relief applications in practice.
—Gary B. Born, King & Spalding International LLP
Dr. Jane Fedotova’s book takes readers on an insightful academic journey through emergency relief in international arbitration, addressing many of the questions that vex practitioners in the still relatively nascent and evolving world of emergency arbitration. She comprehensively covers the legal framework of emergency proceedings, the standards that should apply in determining an application for emergency relief, and the binding effect of any resulting decision and its capability of enforcement. In taking the reader on this journey, she usefully draws on data available from arbitral institutions (including arbitral rules, practice notes and case materials), court decisions, national and international law, and legal commentary, comparing and contrasting the approach taken in different jurisdictions. Dr. Fedotova’s useful book leaves the practitioner well-informed about all aspects of emergency relief in international arbitration and, where there is no clear answer to a question, suggests best practice based on her detailed research, making it an invaluable tool for arbitration practitioners contemplating emergency proceedings.
—Sarah Lancaster, Independent Arbitrator
Dr. Jane Fedotova is a solicitor of the Senior Courts of England and Wales and of the Eastern Caribbean Supreme Court (Virgin Islands Circuit). She was awarded the Queen Mary University of London degree of PhD (Doctor of Philosophy) and successfully defended her thesis entitled: “The Concept of the Emergency Arbitrator: Is It a Novelty? Meaning of “Emergency”, Legal Framework, Standards and Enforcement of the Emergency Relief”. She continues to pursue her academic interests as an associate lecturer teaching an investment arbitration course provided by the QMUL School of International Arbitration.
Dr. Fedotova’s legal practice at Conyers Dill & Pearman in the British Virgin Islands covers a wide range of commercial, insolvency and arbitration matters, often involving matters arising in the circumstances of urgency relating to asset tracing, breach of contract, and allegations of fraud. International arbitration is part of her daily professional life in the British Virgin Islands, covering a variety of matters from advising clients on all aspects of BVI-seated arbitrations conducted inter alia under the arbitration rules of the British Virgin Islands International Arbitration Centre to appealing and setting aside BVI arbitral awards. An important part of her practice is devoted to matters requiring assistance from the local courts pending commencement of arbitration, in support of ongoing arbitration and at the stage of enforcement of arbitral awards.
She is a member of the Arbitration Committee established under the auspice of the British Virgin Islands International Arbitration Centre and is a Chair of the British Virgin Islands Chapter of the Chartered Institute of Arbitrators. She is the Fellow of the Chartered Institute of Arbitrators.
Being a common law practitioner educated at the University College London (LLM), trained in the leading law firms of London and benefiting from serving as Counsel at the London Court of International Arbitration, she obtained her undergraduate degree in law in a civil law jurisdiction from the Lomonosov Moscow State University, which enriched her understanding of civil law traditions.
Jane Fedotova's Emergency Relief in International Arbitration: Concept, legal Framework, Standards and Enforcement is a truly masterful work. Emergency relief emerged from the practical reality that constitution of a tribunal may take excessively long periods of time during which interim relief may be necessary. Emergency arbitrators represent what could be a simpler and more effective alternative to national courts for this purpose. But the emergency relief system itself raises a host of practical problems which have never been examined comprehensively, making its navigation a real challenge. As the book's title would indicate, the author first sets out the governing legal framework of emergency relief and then tackles the user's two central needs, viz: (a) an understanding of the standards for grant of relief and the grounds on which it can be opposed and (b) appreciation of what effective enforcement of such relief, if granted, entails. This work clearly and systematically presents all that anyone interested in emergency relief could possibly need to know.
—George A. Bermann, Professor, Columbia Law School
The emergency arbitrator is one of the most important procedural innovations in international arbitration in the past two decades. It has also been one of the least carefully examined. Dr. Jane Fedotova's book meets that challenge head on. It works through the emergency arbitrator procedure from beginning to end: the legal framework governing the initial application, the standards for granting relief, and, finally, the binding effect, review, and enforcement of the resulting decision. Her analysis is even-handed as between applicants and respondents, and it is complemented throughout by a comparison to the power of an arbitral tribunal to grant its own interim relief, which is a useful benchmark when exploring what distinguishes this procedure. This is a valuable and much-needed contribution to the literature, and it will be genuinely useful to practitioners, arbitrators, and courts who face emergency relief applications in practice.
—Gary B. Born, King & Spalding International LLP
Dr. Jane Fedotova’s book takes readers on an insightful academic journey through emergency relief in international arbitration, addressing many of the questions that vex practitioners in the still relatively nascent and evolving world of emergency arbitration. She comprehensively covers the legal framework of emergency proceedings, the standards that should apply in determining an application for emergency relief, and the binding effect of any resulting decision and its capability of enforcement. In taking the reader on this journey, she usefully draws on data available from arbitral institutions (including arbitral rules, practice notes and case materials), court decisions, national and international law, and legal commentary, comparing and contrasting the approach taken in different jurisdictions. Dr. Fedotova’s useful book leaves the practitioner well-informed about all aspects of emergency relief in international arbitration and, where there is no clear answer to a question, suggests best practice based on her detailed research, making it an invaluable tool for arbitration practitioners contemplating emergency proceedings.
—Sarah Lancaster, Independent Arbitrator
PDF of Title Page and T.O.C.
CONTENTS
Preface
Acknowledgments
About the Author
Chapter 1. The Legal Framework of Emergency Proceedings
1. Introduction
2. Elements of Emergency Proceedings
3. The Laws Applicable to the Internal Elements of Emergency Proceedings
3.1. The Seat of the Emergency Proceedings
3.2. Internal Technical Matters
3.3. Internal Substantive Matters
(i). The Powers of the Emergency Arbitrator
(a). The Power to Grant Emergency Relief
(b). Other Powers of the Emergency Arbitrator
(ii). Specific Powers of the Emergency Arbitrator
(iii). Jurisdiction and Admissibility
(iv). The Powers of the Arbitral Institution and of the Arbitral Tribunal
4. The Laws Applicable to the External Matters of the Emergency Proceedings
4.1. The Interrelationship between Emergency Proceedings and the Applicable Law
4.2. The Technical Powers of the Court During Emergency Proceedings
4.3. The Technical Powers of the Court After Emergency Proceedings
5. Conclusion
Chapter 2. The Standards for Granting Emergency Relief
1. Introduction
2. The Minimum Threshold
2.1. Procedural Requirements
2.2. Notification Requirement
2.3. Prima Facie Jurisdiction
2.4. Urgency
3. Jurisdiction and Admissibility
3.1. Jurisdiction
3.2. Admissibility
4. The Merits of the Application
4.1. Legal Authorities Containing International Standards
(i). Arbitral Decisions
(ii). Codified Best Practices and Reports
(iii). Arbitration Rules
(iv). Legal Commentary
(v). National Law
(vi). Arbitration Law
(vii). The Law Applicable to the Substance of the Dispute
(viii). The Parties’ Agreement
(ix). Conventions and Treaties
4.2. Prima Facie Case on the Merits
4.3. Urgency
(i). Risk of Imminent Harm
(ii). Irreparable, Substantially Serious or Sufficient Harm
(iii). Balance of Convenience
(iv). Emergency
(v). Other Standards
(vi.) Other Available Strategies: Not Responding, Reserving Rights, Consenting
5. Conclusion
Chapter 3. The Binding Effect, Review and Enforcement of Emergency Relief
1. Introduction
2. The Binding Effect of the Emergency Decision
2. 1. The Definitional Approach
2.2. The Form of the Emergency Decision
2.3. The Lack of Finality
(i). Res Judicata: Overview
(ii). Not a Decision “on the Merits”
(iii). Not a “Final” Decision
(a). The Traditional Approach
(b). The Positive Preclusive Effect
(c). The Negative Preclusive Effect
(d). The Effect of the Emergency Decision
(e). The Flexible Approach
3. Review of the Emergency Decision
3.1. Jurisdiction
3.2. Grounds for Review
4. Enforcement of the Emergency Decision
4.1. Specific Regime for the Enforcement of Emergency Relief
4.2. Specific Regime for the Enforcement of Provisional Measures
(i). Singapore
(ii). New Zealand
(iii). Other Jurisdictions
4.3. Indirect Enforceability of the Emergency Decision
5. Conclusion
Bibliography
List of Abbreviations
Table of Cases
Index