By Hon. Dr. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb (Leading Environmental Law Scholar, Sustainable Development Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), The African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021 and Author of the Kenya’s First ESG Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023) and and Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023) and Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023)*

Emergency arbitration is a special procedure whereby an arbitrator is appointed to hear applications for urgent interim relief(s) prior to the constitution of the Tribunal. Emergency arbitration or expedited measures of protection provide a framework for a party to an arbitration to request immediate though short-term reliefs before the process of appointment of an arbitral tribunal is completed. Under this process, emergency reliefs are sought upon the filing of the arbitration demand and may be compared to motions for injunctive relief or a temporary restraining order in court proceedings. Under emergency arbitration, an emergency arbitrator is appointed to hear and decide applications for emergency interim relief filed by parties before the constitution of the tribunal. Under this process, the person appointed as emergency arbitrator does not go on to become a member of the arbitral tribunal. The powers of the emergency arbitrator lapse as soon as the tribunal is constituted.

Emergency arbitration has emerged as a very important doctrine in enhancing the efficacy of arbitration proceedings. It has been argued that in some cases, the nature of a dispute requires immediate action to avoid irreparable harm. In traditional litigation, a party might seek a temporary restraining order or a preliminary injunction from a court to prevent another party from taking certain action. Further, it has been observed that until recently, parties to international arbitration agreements had no recourse to arbitration to preserve the status quo, conserve assets or evidence, or seek other provisional relief until a tribunal had been established in a particular case-a process that in the best of circumstances, took weeks after submission of a ‘request for arbitration’ or ‘notice of arbitration.’ To obtain provisional measures in such circumstances, parties were required to resort to national courts.

Emergency arbitration has therefore emerged in order to ensure that the grant of interim measures of protection is conducted within the confines of arbitration and not by national courts. It has been argued that some of the attributes of arbitration such as privacy, confidentiality and efficiency may be lost if a party is forced to pursue provisional reliefs in open court2. Some parties therefore prefer to seek interim measures within the arbitral process. Emergency arbitration is therefore vital in realizing the agreement of parties’ to arbitrate disputes.

Emergency arbitration is important as parties (typically Claimants) may find themselves in a factual situation where they are in need of urgent interim relief, but the tribunal has not yet been appointed. Recourse to emergency arbitration is particularly important when considering the amount of time the process of constituting a tribunal can take. This timeline may be substantially lengthened by an uncooperative Respondent who is determined to delay the proceedings to the Claimant’s detriment. Under emergency arbitration, any emergency measure granted takes the form of an order. The order may be later revisited by the arbitral tribunal once constituted.

Emergency arbitration has been adopted by various arbitral institutions to address the need for emergency interim reliefs at the pre-arbitral stage34. Under the International Chamber of Commerce (ICC) Arbitration Rules, 2021, a party that needs urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal (“Emergency Measures”) may make an application for such measures36. The Rules envisage the appointment of an emergency arbitrator within two days of receipt of the application. The rules further provide that the emergency arbitrator’s decision shall take the form of an order and that parties shall comply with any order made by the emergency arbitrator. The emergency arbitrator is required to make the order not later than 15 days from the date on which the file was transmitted to him/her.

In addition, the Rules provide that the emergency arbitrator’s order shall not bind the arbitral tribunal with respect to any question, issue or dispute determined in the order and that the arbitral tribunal may modify, terminate or annul the order or any modification thereto made by the emergency arbitrator40. The Rules also give powers to the arbitral tribunal to decide upon any party’s requests or claims related to the emergency arbitrator proceedings, including the reallocation of the costs of such proceedings and any claims arising out of or in connection with the compliance or noncompliance with the order. The Rules also provide that an emergency arbitrator shall not act as an arbitrator in any arbitration relating to the dispute that gave rise to the application.

Emergency arbitration is also provided for under the London Court of International Arbitration (LCIA) Arbitration Rules. The Rules provide that in the case of emergency at any time prior to the formation or expedited formation of the Arbitral Tribunal, any party may apply to the LCIA Court for the immediate appointment of a temporary sole arbitrator to conduct emergency proceedings pending the formation or expedited formation of the Arbitral Tribunal (the “Emergency Arbitrator”). The rules envisage appointment of an emergency arbitrator within three days of receipt of the application. The rules require the emergency arbitrator to decide the claim for emergency relief as soon as possible, but no later than 14 days following the appointment. An emergency arbitrator is required to make an order in writing, with reasons. Such an order may be confirmed, varied, discharged or revoked, in whole or in part, by order or award made by the Arbitral Tribunal upon application by any party or upon its own initiative.

The Chartered Institute of Arbitrators (CIArb) Arbitration Rules also enshrine the doctrine of emergency arbitration. Under the Rules, any party in need of conservatory or urgent interim measures prior to the constitution of the arbitral tribunal may file an application with the CIArb seeking the appointment of an emergency arbitrator. The Rules stipulate that an application for the appointment of an emergency arbitrator may seek orders, including, but not limited to: maintaining or restoring the status quo pending the determination of the dispute; taking action that would prevent, or refrain from taking action that is likely to cause current or imminent harm or prejudice to the arbitral process itself; providing a means of preserving assets out of which a subsequent award may be satisfied; or preserving evidence that may be relevant and material to the resolution of the dispute.

The Rules require an emergency arbitrator to be appointed within two days of receipt of the application. Further, under the Rules, no emergency arbitrator may be appointed after the arbitral tribunal has been constituted. The Rules also require the emergency arbitrator to decide the issues raised in the application as soon as possible and preferably no later than 15 days following the appointment, taking due care to ensure that all parties are afforded notice and a reasonable opportunity to be heard. The Rules further state that any order or award issued by the emergency arbitrator, including an award of costs, may be modified or confirmed by the arbitral tribunal, and, in the absence of such a modification or confirmation, shall automatically expire and no longer be in effect 15 days following the constitution of the arbitral tribunal.

In addition, the Arbitration Rules of the Common Market for Eastern and Southern Africa (COMESA) Court of Justice also provide for emergency arbitration. Under the rules, a party may apply for conservatory or urgent interim measures prior to the constitution of an arbitral tribunal by making a request to the Assigning Authority for the appointment of an emergency arbitrator. Under the emergency arbitration procedure, a request for the appointment of an emergency arbitrator may seek orders, including, but not limited to maintaining or restoring the status quo pending the determination of the dispute; taking action that would prevent, or refrain from taking action that is likely to cause current or imminent harm or prejudice to the arbitral process itself; providing a means of preserving assets out of which a subsequent award may be satisfied; or preserving evidence that may be relevant and material to the resolution of the dispute.

Like the CIArb Rules, the COMESA Rules also require an emergency arbitrator to be appointed within two days of receipt of the application and that no emergency arbitrator shall be appointed after the arbitral tribunal has been constituted. In addition, they stipulate that the emergency arbitrator shall not serve as a member of the arbitral tribunal unless the parties otherwise agree. The Rules further require the emergency arbitrator to decide the issues raised in the application no later than fifteen (15) days following the appointment, taking due care to ensure that all Parties are afforded notice and a reasonable opportunity to be heard.

Further, under the rules, any order or award issued by the emergency arbitrator, including an award of costs may be modified or confirmed by the emergency arbitrator or the arbitral tribunal, and, in the absence of such a modification or confirmation, shall automatically expire and no longer be in effect fifteen (15) days following the constitution of the arbitral tribunal. In addition, the Rules also stipulate that the emergency arbitral order shall not bind the arbitral tribunal with respect to any question, issue or dispute determined in the order. The rules also give powers to the arbitral tribunal to modify, terminate or annul the order or any modification thereto made by the emergency arbitrator.

The doctrine of emergency arbitration is also upheld under the Kigali International Arbitration Centre Arbitration Rules which are similar to the COMESA Rules. Emergency arbitration has also been encapsulated under the Arbitration Rules of the Nairobi Centre for International Arbitration. Under the Rules, a party who intends to make an application for an emergency arbitration shall submit a written request to the Registrar. The Registrar is required to appoint an emergency arbitrator within two days of receipt of the application. The Rules further stipulate that an emergency arbitrator may not act as an arbitrator in any future arbitration relating to the dispute, unless the parties consent. In addition, the Rules state that emergency arbitrator shall have the same powers vested in the Arbitral Tribunal under these Rules, including the power to rule on his own jurisdiction and any objection to the application. Further, the Rules provide that the emergency arbitrator shall make an order or award within fifteen days from the date of appointment, which period may be extended by agreement of the parties. From the foregoing, it is evident that emergency arbitration has been adopted by various arbitral institutions in similar lines to address the need for emergency interim reliefs before appointment of arbitral tribunals.

*This is an extract from the Article: (Re) Examining the Doctrine of Emergency Arbitration: ((2023) 12(1) Alternative Dispute Resolution by Hon. Dr. Kariuki Muigua, OGW, PhD, Senior Advocate of Kenya, Chartered Arbitrator, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Lifetime Achievement Award 2021 (CIArb Kenya), African Arbitrator of the Year 2022, Africa ADR Practitioner of the Year 2022, Member of Permanent Court of Arbitration nominated by Republic of Kenya and Member of National Environment Tribunal (NET). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2022. Dr. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2022 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya and the Top Arbitrator in Kenya in 2023. 

References

American Arbitration Association., ‘ADR: What’s Your Emergency?’ Available at https://www.adr.org/blog/ADR-Whats-Your-Emergency (Accessed on 29/08/2023).

Arbitration Rules of the COMESA Court of Justice (2018)., Available at https://comesacourt.org/wp-content/uploads/2019/11/COMESA-COURT-ARBITRATIONRULES-2018.pdf (Accessed on 29/08/2023).

Burbeza. Z., ‘LCIA Emergency Arbitrations: Brief Outline.’ Available at https://imdcorporate.co.uk/dispute-resolution/lcia-emergency-arbitrations-briefoutline/ (Accessed on 29/08/2023)

Chartered Institute of Arbitrators Arbitration Rules, 2015., Available at https://www.ciarb.org/media/2729/ciarb-arbitration-rules.pdf (Accessed on 29/08/2023).

Hanessian. G, & Dosman. A., ‘ Songs of Innocence and Experience: Ten Years of Emergency Arbitration.’ Available at http://arbitrationlaw.com/sites/default/files/free_pdfs/aria_-_songs_of_access.pdf (Accessed on 29/08/2023)

International Chamber of Commerce., ‘Arbitration Rules, 2021’ Available at https://iccwbo.org/wp-content/uploads/sites/3/2020/12/icc-2021-arbitration-rules-2014- mediation-rules-english-version.pdf (Accessed on 29/08/2023)

International Chamber of Commerce., ‘Emergency Arbitrator.’ Available at https://iccwbo.org/dispute-resolution/dispute-resolution-services/arbitration/rulesprocedure/emergency-arbitrator/ (Accessed on 29/08/2023).

Kigali International Arbitration Centre Arbitration Rules, 2012., Available at https://africaarbitration.org/resources/rules/Kigali%20International%20Arbitration%20Centr e%20Rules.pdf (Accessed on 29/08/2023)

London Court of International Arbitration., ‘Arbitration Rules.’ Available at https://www.lcia.org/Dispute_Resolution_Services/lcia-arbitration-rules-2014.aspx (Accessed on 29/08/2023)

Nairobi Centre for International Arbitration., Arbitration Rules, 2015., Available at https://ncia.or.ke/wp-content/uploads/2021/02/Final-NCIA-Revised-Rules-2019.pdf (Accessed on 29/08/2023)

Norton Rose Fulbright., ‘Emergency Arbitrators in Singapore.’ Available at https://www.nortonrosefulbright.com/en/knowledge/publications/0c310fce/emergencyarbitrators-in-singapore (Accessed on 29/08/2023)

Singapore International Arbitration Centre., ‘Emergency Arbitration.’ Available at https://siac.org.sg/emergencyarbitration#:~:text=The%20Emergency%20Arbitrator%20procedure%20is,the%20constitutio n%20of%20the%20Tribunal (Accessed on 29/08/2023).

Thrasher. A., ‘Emergency Arbitration Proceedings and How they Relate to Construction Disputes.’ Available at https://www.bradley.com/insights/publications/2023/05/emergency-arbitration-proceedingsand-how-they-relate-to-constructiondisputes#:~:text=Rule%20R%2D39%20under%20the,the%20application%20for%20eme rgency%20relief (Accessed on 29/08/2023)