Originally from Emergency Relief in International Arbitration: Concept, Legal Framework, Standards, and Enforcement

PREVIEW

1. Introduction  

Recognition and enforcement of emergency decisions has been widely discussed by academics and practitioners. The lack of clarity of the status of emergency decisions has been viewed as a major drawback of the concept of an emergency arbitrator. As some authors put it: ‘[D]espite the fact that all the institutional rules … expressly state that an emergency arbitrator’s decision shall bind the parties, … none provide a clear route for their enforcement …’. A further layer of uncertainty is added by (i) the procedure present in all leading rules on emergency procedure allowing the arbitral tribunal (including the emergency arbitrator) to modify, discharge or revoke the emergency decision, which is referred to in this chapter as a “review” of an emergency decision, and (ii) the provision usually found in arbitration rules that an arbitral tribunal is not bound by the decision of an emergency arbitrator.  

The decision of the emergency arbitrator, although immediately binding on the respondent, is not equivalent to a court order, nor is it clear whether the respondent would succeed in resisting its enforcement on the ground that the emergency decision is not an arbitral award enforceable under the New York Convention. If so, there could be other routes for enforcement of the emergency decision, each of which would have its own grounds for resistance.