As part of its 2012 Rules of Arbitration, the ICC introduced a new means of obtaining interim relief prior to the constitution of an arbitral tribunal. Parties choosing ICC arbitration can now resort to an emergency arbitrator in such situations. This possibility, which is an integral part of the Arbitration Rules, exists alongside the ICC pre-arbitral referee procedure, whose use requires a specific agreement between the parties. This article looks at the differences and similarities between these two procedures, including their scope, the initiation and conduct of the proceedings, the selection of the referee/emergency arbitrator and the force of the decisions made. The author concludes that, although both are aimed at obtaining interim relief, the two procedures are distinctly different with speed being of the essence in emergency arbitrator proceedings. Finally he anticipates that, as already seen in relation to pre-arbitral referee decisions, the legal status of the orders issued in these proceedings is likely to be subject to diverse interpretations.

La CCI a introduit dans son Règlement d'arbitrage 2012 un nouveau dispositif permettant d'obtenir des mesures provisoires avant la constitution du tribunal arbitral. Il est désormais proposé aux parties qui choisissent l'arbitrage de la CCI la possibilité de recourir à un arbitre d'urgence dans de telles situations. Cette possibilité, qui fait partie intégrante du Règlement d'arbitrage, coexiste avec celle de recourir à la procédure de référé pré-arbitral de la CCI qui, elle, nécessite un accord entre les parties prévoyant son utilisation. Cet article examine les différences et les ressemblances entre les deux procédures, en considérant notamment leur champ d'application, l'introduction et la conduite de la procédure, la sélection du référé/de l'arbitre d'urgence et la force des décisions rendues. L'auteur conclut que les deux procédures, même si elles visent les mesures provisoires, se distinguent nettement l'une de l'autre, la rapidité étant primordiale dans la procédure de l'arbitre d'urgence. Il prévoit enfin que la qualification juridique des ordonnances rendues dans ces procédures est susceptible de donner lieu à des interprétations différentes.

En su Reglamento de Arbitraje de 2012, la CCI instauró un nuevo sistema para obtener medidas provisionales antes de la constitución de un tribunal arbitral. En lo sucesivo, las partes que opten por el arbitraje de la CCI podrán recurrir a un árbitro de emergencia en tales situaciones. Esta posibilidad forma parte integrante del Reglamento de Arbitraje y coexiste con el procedimiento precautorio prearbitral de la CCI, que requiere un acuerdo específico previo entre las partes. Este artículo examina las semejanzas y diferencias de estos dos procedimientos, incluyendo su alcance, el inicio y el desarrollo de los procedimientos, la selección del tercero/árbitro de emergencia y la fuerza de las decisiones tomadas. El autor llega a la conclusión de que, aunque el propósito de los dos procedimientos es obtener medidas provisionales, ambos son marcadamente diferentes, siendo la velocidad el principio fundamental del procedimiento del árbitro de emergencia. Para terminar, el autor prevé que, como ya se ha observado en los procedimientos precautorios prearbitrales, el estatuto jurídico de las ordenes emitidas en estos procedimientos estará probablemente sujeto a diversas interpretaciones.

I. Introduction

In 1990, the International Chamber of Commerce ('ICC') introduced its Rules for a Pre-Arbitral Referee Procedure-a set of rules separate from the ICC Rules of Arbitration allowing parties to have rapid recourse to a 'referee' empowered to provide a temporary resolution of an issue in dispute. This procedure was intended to fill a gap in the ICC arbitration system, which afforded parties the possibility of seeking interim relief from the arbitral tribunal once it was in place but left them with no alternative but to resort to the courts for any interim relief required prior to the constitution of the arbitral tribunal. The ICC Pre-Arbitral Referee Rules defined a procedure that, like arbitration itself, was intended to offer the neutrality of a process outside state courts and the competence of a specially chosen decision-maker. Despite these benefits, the procedure has not found acceptance in the market. Even after twenty years, it remains poorly known, not only among parties but also their legal advisers. Also, the fact that its application requires a specific agreement between the parties may help to explain its meagre uptake.1

The ICC responded to the lacklustre success of its Pre-Arbitral Referee Rules by including in its 2012 Rules of Arbitration2 a new article allowing parties to obtain interim relief before the constitution of the arbitral tribunal.3 That article (Article 29), together with Appendix V of the 2012 Rules (together known as the Emergency Arbitrator Provisions), set forth a procedure for obtaining urgent measures from an emergency arbitrator.4 This new mechanism for the expedited treatment of truly urgent matters reflects changes in arbitration since the adoption of the Pre-Arbitral Referee Rules more than twenty years ago and parallel developments in the rules of other institutions.

The Emergency Arbitrator Provisions are an integral part of the 2012 Arbitration Rules.5 As such, they do not require a specific agreement but are available for use by parties that have agreed to arbitration under those Rules, unless one of the exceptions provided in Article 29(6) applies-i.e. (1) the arbitration agreement was entered into prior to 1 January 2012, (2) the parties have agreed to opt-out of the Emergency Arbitrator Provisions,6 or (3) the parties have agreed to another pre-arbitral procedure for interim relief-or the conditions for their application are not met.

The new Emergency Arbitrator Provisions in the 2012 Arbitration Rules have not superseded the Pre-Arbitral Referee Rules, which continue to exist and to be available for use. To help users better understand the differences between the two procedures, this article compares their purpose, nature, conduct and effect.

II. The application/request

1. Scope

The Emergency Arbitrator Provisions limit recourse to the emergency arbitrator to matters that cannot await the constitution of an arbitral tribunal (AR,7 Article 29(1)). Their scope is therefore narrower than that of the Pre-Arbitral Referee Rules. Whereas only truly urgent matters can be brought before an emergency arbitrator, a pre-arbitral referee has the power to order a wider range of interim measures. These include not only 'conservatory measures or any restoration measures that are urgently necessary' (emphasis added), but also due payments, performance in accordance with the contract and measures necessary to preserve or establish evidence, all without any express condition of urgency.8[Page95:]

2. Admissibility

An application for the appointment of a referee under the Pre-Arbitral Referee Rules is referred to as a 'Request' (PARR, Article 3.2). Emergency arbitrator proceedings are commenced by filing an 'Application' (EAR, Article 1(1)).

The President of the ICC International Court of Arbitration9 determines the admissibility of both a Request under the Pre-Arbitral Referee Rules and an Application under the Emergency Arbitrator Rules. The former is considered admissible when the President is prima facie satisfied of the existence of an agreement of the parties to use the Pre-Arbitral Referee Rules (PARR, Article 4.1). The President is not authorized to assess the existence-be it prima facie or otherwise-of an arbitration agreement. The Emergency Arbitrator Provisions, on the other hand, require the President to check whether the parties are either signatories, or successors to signatories, of an ICC arbitration agreement. In emergency arbitrator proceedings, the President must also verify that none of the three exceptions excluding application of the Emergency Arbitrator Provisions applies.10 The admissibility of emergency arbitrator proceedings is therefore subject to a higher threshold than the admissibility of pre-arbitral referee proceedings.

3. Formal requirements

In its Application, a party seeking Emergency Measures pursuant to the Emergency Arbitrator Provisions must justify that such measures cannot await the constitution of the tribunal (EAR, Article 1(3), subparagraph (e)). No similar requirement exists under the Pre-Arbitral Referee Rules. In addition, the applicant in emergency arbitrator proceedings is requested to describe the circumstances prompting the Application and the underlying dispute referred or to be referred to ICC arbitration (EAR, Article 1(3), subparagraph (c)). The Request under the Pre-Arbitral Referee Rules, on the other hand, requires only an explanation of the grounds relied on by the party initiating the proceedings (PARR, Article 3.2.2, subparagraph (c)). Both a Request and an Application must contain the names of the parties and their contact details,11 a copy of the relevant agreement(s), and details of the Order or Emergency Measures requested (EAR, Article 1(3); PARR, Article 3.2.2).

Another difference between a Request and an Application is the need to include in a Request confirmation that the Request has been sent to all other parties, and to state the name of the referee chosen by the parties (PARR, Article 3.2.2). Neither of these requirements is found in the Emergency Arbitrator Provisions, as parties do not choose the emergency arbitrator and the ICC Secretariat is in charge of notifying the Application to the other party (EAR, Article 1(5)).

Another requirement peculiar to emergency arbitrator proceedings is that the applicant is under an obligation to submit a Request for Arbitration to the ICC within ten days of the Secretariat's receipt of its Application for Emergency Measures. Failing this, the President of the Court will, in principle, terminate the emergency arbitrator proceedings.

III. Appointment, challenge and transmission of file

Parties interested in resorting to the ICC pre-arbitral referee procedure may jointly select a referee before or after a Request is made (PARR, Article 4.1). If they fail to agree, the President of the ICC International Court of Arbitration makes the appointment (PARR, Article 4.1). Under the Emergency Arbitrator Rules, the emergency arbitrator is not chosen by the parties, as this would invariably slow down the process, but is instead selected by the President of the ICC Court (EAR, Article 2(1)) no later than two days after the Secretariat receives the Application. Prior to the appointment, the prospective emergency arbitrator must sign a statement of acceptance, availability, impartiality and independence (EAR, Article 2(5)), as is required of arbitrators under the Arbitration Rules.

In emergency arbitrator proceedings, the Secretariat notifies the parties of the appointment and transmits the file to the emergency arbitrator (EAR, Article 2(3)). After this point, all written communications between the parties are submitted directly to the emergency arbitrator with a copy to the Secretariat (EAR, Article 2(3)). Similar provisions apply in pre-arbitral referee proceedings (PARR, Article 4.3). [Page96:]

Both emergency arbitrators and pre-arbitral referees may be subject to challenge. An emergency arbitrator may be challenged within three days of receipt of notification of the appointment or of the date on which the party concerned becomes aware of the facts and circumstances justifying a challenge (EAR, Article 3(1)). The ICC Court decides on the challenge after the emergency arbitrator and the other party have been given an opportunity to provide their comments in writing 'within a suitable period of time' (EAR, Article 3(2)). In pre-arbitral referee proceedings there is no time limit within which parties may file a challenge and the President of the ICC Court-not the Secretariat as in emergency arbitrator proceedings-gives the referee and the other party an opportunity to comment before deciding on the challenge 'within the shortest time possible' (PARR, Article 4.4).

It may be noted that an emergency arbitrator is not allowed to act as arbitrator in any related arbitration (EAR, Article 2(6)). It is not stated whether parties may agree otherwise, but this would seem to be possible if they consider it appropriate. There is no such ban in the Pre-Arbitral Referee Rules.

IV. Place of the proceedings

The Pre-Arbitral Referee Rules do not contain any provisions relating to the place of the proceedings. From this standpoint, they may be considered 'homeless'.12 In contrast, the emergency arbitrator proceedings have a seat, determined in accordance with Article 4 of the Emergency Arbitrator Rules: it is the same as the place of the arbitration, which is normally agreed upon by the parties in their arbitration agreement. If this is not the case, the President of the ICC Court fixes the place of the emergency arbitrator proceedings.

As far as meetings are concerned, the Emergency Arbitrator Provisions state that proceedings may take place in person or by video conference, telephone or similar means of communication (EAR, Article 4(2)). This provision reflects the new possibilities offered by modern communications technology. The Pre-Arbitral Referee Rules, drafted over twenty years ago, simply allow the referee to convene the parties to appear at a place fixed by the referee (PARR, Article 5.5).

V. The proceedings

Once appointed, the emergency arbitrator must establish a procedural timetable for the proceedings in as short a time as possible-usually within two days of receipt of the file (EAR, Article 5(1)). The emergency arbitrator is required to conduct the proceedings taking into account the nature and urgency of the matter (EAR, Article 5(2)). It may be recalled that the ICC Rules of Arbitration have required a provisional timetable to be established only since 1998. The concept of a procedural timetable was not foreseen when the Pre-Arbitral Referee Rules were issued, hence their silence on this point.

The Emergency Arbitrator Rules require the emergency arbitrator to act 'fairly and impartially and ensure that each party has a reasonable opportunity to present its case' (EAR, Article 5(2)). This provision reflects language that was first introduced in the 1998 Rules of Arbitration.13

In pre-arbitral referee proceedings, if any party has not submitted an Answer by the time the file is transferred to the referee, the referee may ask the requesting party to provide evidence that a copy of the Request has been received or should be regarded as having been received by the other party before the referee proceeds further (PARR, Article 5.1). If no satisfactory evidence is provided, the referee may notify the responding party of its right to submit an Answer and fix a time limit for such submission. This problem is avoided in the Emergency Arbitrator Rules, which do not require the responding party or parties to answer the Application prior to the transmission of the file to the emergency arbitrator.14

The Pre-Arbitral Referee Rules direct the parties to provide the referee with all documents in support of the Application, and to allow the referee access to any place for further investigation or inquiry (PARR, Article 5.4). There is no similar provision in the Emergency Arbitrator Rules, which provide for a much more rapid procedure.15[Page97:]

VI. The decision

1. Form and content

Although both the emergency arbitrator and the referee issue 'Orders', there are important differences between the two sets of Rules in this respect. An emergency arbitrator's Order must state the reasons on which it is based, be issued within fifteen days of receipt of the file, and be notified directly to the parties, with a copy to the Secretariat, by any means of communication considered appropriate to ensure prompt receipt and provide a record of sending (EAR, Article 6).

In contrast, the referee must first submit the Order to the Secretariat, which then notifies it to the parties. Such notification is conditional upon the parties having fully paid the costs of the proceedings (PARR, Article 6.5). No such issue arises in emergency arbitrator proceedings, as they are not set in motion if the applicant has not made an upfront payment of US$ 40,000 to cover the costs of the proceedings.

Both the emergency arbitrator and the referee may call for the provision of security as a condition for issuing the Order (EAR, Article 6(7); PARR, Article 6.4). As for content, Orders of both emergency arbitrators and referees must fix the costs of the proceedings and describe how responsibility for those costs has been allocated among the parties (EAR Article 7(3); PARR, Article 7.1).

2. Legal effect

Under both the Emergency Arbitrator Provisions and the Pre-Arbitral Referee Rules the Order is binding (AR, Article 29(2); PARR, Article 6.6). However, the Emergency Arbitrator Rules provide for four situations in which the Order ceases to be binding on the parties: (1) the President of the ICC Court terminates the emergency arbitrator proceedings (pursuant to EAR, Article 1(6)); (2) the Court accepts a challenge against the emergency arbitrator; (3) the arbitral tribunal issues a final award, unless it is expressly decided otherwise; or (4) all claims are withdrawn or the arbitration is terminated before a final award is made (EAR, Article 6(6)).

VII. Interaction with arbitral tribunals and courts

The Pre-Arbitral Referee Rules require parties to comply with the Order 'without delay' and to waive their right of appeal, recourse or opposition against any request made to the courts or any other authority to implement the Order (PARR, Article 6.6). Likewise, parties to emergency arbitrator proceedings undertake to comply with any Order made by the emergency arbitrator (AR, Article 29(2)).

1. Interaction between the emergency arbitrator/pre-arbitral referee and the arbitral tribunal

Both the Emergency Arbitrator Provisions and Pre-Arbitral Referee Rules grant the arbitral tribunal the right to revisit an Order, which shall have no prejudicial effect on an arbitral tribunal (AR, Article 29(3); PARR, Article 6.3). In addition, the Emergency Arbitrator Provisions give the arbitral tribunal jurisdiction to hear claims regarding the costs of emergency arbitrator proceedings and the compliance or non-compliance with an Order (AR, Article 29(4)).

2. Interaction between the emergency arbitrator/pre-arbitral referee and the courts

The Emergency Arbitrator Provisions are not intended to prevent parties from seeking urgent interim measures from a competent judicial authority before making an Application under the Emergency Arbitrator Rules, or even thereafter if appropriate (AR, Article 29(7)). An Application will not be deemed to be an infringement or a waiver of the parties' arbitration agreement (AR, Article 29(7)). This provision mirrors the language used in Article 28(2) of the 2012 Arbitration Rules in respect of conservatory and interim measures. Any application made to and any measures taken by a judicial authority must be notified without delay to the Secretariat (AR, Article 29(7)).

The Pre-Arbitral Referee Rules do not prohibit the parties from seeking relief in the courts either (PARR, Article 1.1). [Page98:]

VIII. Costs

The cost of initiating pre-arbitral referee proceedings is much less than for initiating emergency arbitrator proceedings. The Pre-Arbitral Referee Rules require payment of an initial, non-refundable administrative charge of US$ 2,500 and a US$ 2,500 advance on the fees and expenses of the referee and any expert (PARR, Appendix). After the file has been transmitted to the referee, the Secretariat consults with the parties and the referee to fix an advance on costs to cover the estimated procedural costs. This advance is subject to readjustment by the Secretariat (PARR, Appendix, B.2).

The considerably higher cost of initiating emergency arbitrator proceedings is intended to make a potential applicant seriously consider whether the matter at issue needs to be resolved before the constitution of the arbitral tribunal. The applicant must pay an initial amount of US$ 40,000 (in contrast to the US$ 5,000 upfront payment required in pre-arbitral referee proceedings). The US$ 40,000 consists of US$ 10,000 for administrative expenses and US$ 30,000 to cover the emergency arbitrator's fees and expenses (EAR, Article 7(1)). Another distinguishing feature of the costs system for emergency arbitrator proceedings is that the President of the ICC Court, not the Secretariat, can increase the emergency arbitrator's fees or the ICC administrative expenses depending on the circumstances (EAR, Article 7(2)). Further, the emergency arbitrator (not the Secretariat) fixes directly the costs of the emergency arbitrator proceedings, which will normally consist of the US$ 40,000 lump sum and the parties' costs (EAR, Article 7(3)). Therefore, there is no need for the Secretariat of the ICC Court to engage in potentially time-consuming consultations with the emergency arbitrator or for the Secretary General to fix the emergency arbitrator's fees, as is the case under the Pre-Arbitral Referee Rules (PARR, Appendix, A.2).

IX. Conclusion

There are marked differences between the Emergency Arbitrator Provisions and Pre-Arbitral Referee Rules, chief of which is that the former allows parties to obtain urgent measures much faster than the latter. Other significant differences include the way in which the referee or the emergency is selected, the nature and extent of the information required from the parties, and the amount and payment of the costs.

The enforceability of Orders rendered by both pre-arbitral referees and emergency arbitrators remains uncertain. In the first case in which a pre-arbitral referee's decision was referred to a national court, the Paris Court of Appeal refused to set aside the referee's Order.16 The court held that an Order was not an award because a pre-arbitral referee does not act as an arbitrator and does not render a final decision on the merits. The court found that the binding nature of the Order derived solely from the parties' agreement. The court also noted that the drafters of the Pre-Arbitral Referee Rules avoided using the term 'arbitration', which indicates that they did not intend the referee to be seen as an arbitrator, but merely as a person empowered to grant interim relief before a tribunal could be constituted.17

Like a pre-arbitral referee, an emergency arbitrator does not decide on the merits. It is clear from the Emergency Arbitrator Provisions that the emergency arbitrator's role is to issue interim relief-not a final decision-before an arbitral tribunal can be constituted. Nonetheless, the term 'arbitrator' has been used to designate the person who fulfils this role.

It remains to be seen whether and to what extent courts in different legal systems will diverge over the status they assign to Orders issued by pre-arbitral referees and emergency arbitrators. Time will tell whether, in particular in countries that have adopted the UNCITRAL Model Law on International Commercial Arbitration, an emergency arbitrator's Order will be treated as an order for interim relief issued by an arbitral tribunal.18 If so, the emergency arbitrator's Order could receive judicial enforcement. However, given the precedents of other arbitral institutions in this field and the generally high rate of acceptance of arbitral rulings, it may be expected that such decisions will be complied with voluntarily. The question of their enforceability should therefore in practice largely remain moot.

1
Since the introduction of its pre-arbitral referee procedure in 1990, the ICC has administered only ten cases. In May 2002, a mere four matters had been filed under the Pre-Arbitral Referee Rules, see D. Bensaude, 'Le point de vue de la CCI', in Les premières applications du Règlement de référé préarbitral de la CCI: Comment prendre des mesures conservatoires efficaces dans le commerce international?, International Arbitration Institute, proceedings of a seminar on 31 May 2002 (<http://www.iaiparis.com/pdf/actes_colloque.pdf>) p. 14.

2
The new ICC Rules of Arbitration came into force on 1 January 2012. They replace the 1998 Rules which in turn replaced the 1988 Rules, which were in force when the Pre-Arbitral Referee Rules were introduced.

3
Similar Emergency Arbitrator provisions can be found in the rules of the Australian Centre for International Commercial Arbitration, the International Institute for Conflict Prevention & Resolution, the International Centre for Dispute Resolution, the Stockholm Chamber of Commerce and the Singapore International Arbitration Centre.

4
For a more detailed presentation of the ICC's Emergency Arbitrator Provisions, see N. Voser & C. Boog, 'ICC Emergency Arbitrator Proceedings: An Overview' in this Special Supplement.

5
It may be noted that consistency has been sought in the way identical or similar matters are handled in emergency arbitrator proceedings and arbitration proceedings.

6
To opt out of the Emergency Arbitrator Provisions, parties are advised to insert the following wording in their arbitration clause: 'The Emergency Arbitrator Provisions shall not apply.' On the applicability of the Emergency Arbitrator Provisions to states, see E. Castineira, 'The Emergency Arbitrator in the 2012 ICC Rules of Arbitration' [2012:] Les Cahiers de l'arbitrage/The Paris Journal of International Arbitration 65 at 73-74.

7
The following abbreviations will be used in this article when referring to relevant rules: AR = Arbitration Rules; EAR = Emergency Arbitrator Rules (Appendix V to the Arbitration Rules); PARR = Pre-Arbitral Referee Rules.

8
PARR, Article 2.1. See also E. Gaillard & P. Pinsolle,'The ICC Pre-Arbitral Referee: First Practical Experiences' (2004) 20:1 Arbitration International 1 at 15: 'The [Pre-Arbitral Referee] Rules limit the measures that can be obtained, but place no limitation as to what type of issues should be examined by the referee prior to granting such measures.'

9
The Pre-Arbitral Referee Rules originally referred to the 'Chairman' of the ICC Court of Arbitration, as did the Rules of Arbitration at the time. In the 2012 Arbitration Rules this term has been replaced with 'President'. In keeping with this change, reference will be made in this article to the 'President' of the International Court of Arbitration.

10
See Introduction above.

11
In keeping with Article 4 (Request for Arbitration) of the 2012 Arbitration Rules, an Application under the Emergency Arbitrator Rules must also contain the contact details of the applicant's representative.

12
Some years ago, commenting upon the first Paris Court of Appeal decision on a referee's Order, a learned lawyer concluded that since the referee was not sitting as an arbitrator there was no arbitration and therefore no seat. See E. Gaillard, 'First Court Decision on Pre-Arbitral Referee' New York Law Journal, International Arbitration Law (5 June 2003).

13
See Article 15(2) of the 1998 ICC Rules.

14
However, the emergency arbitrator will require proof from the ICC Secretariat that the responding party was served with the Application and that it received subsequent notice of his or her appointment.

15
Although the timeline for emergency arbitrator proceedings is shorter, pre-arbitral referee proceedings nonetheless remain an expeditious way of obtaining interim measures.

16
See E. Gaillard, supra note 12.

17
See E. Gaillard & P. Pinsolle, supra note 8 at 20.

18
See article 17 H of the UNCITRAL Model law (as revised in 2006).