Paris, 3 April 2019

Opening remarks

Alexis Mourre (Alexis Mourre, President of the ICC Court, Paris) opened the launch event and emphasised the relevance of this new Commission Report for users of the successful ICC EA tool, which illustrates when to contemplate EA proceedings and how these proceedings may proceed in terms of process and substance. Fernando Mantilla-Serrano (Partner, Latham & Watkins LLP, Paris; Member of the Task Force) welcomed the speakers and participants to the venue.

Background to the Report

Hélène van Lith (Secretary, ICC Commission on Arbitration and ADR, Paris) introduced the work of the Task Force and its Report by explaining its background work and research, and provided an overview of the programme of the day, the different panels and their topics.

Absent emergency arbitration mechanisms, users requiring urgent interim relief either have (i) to turn to state courts with jurisdiction or (ii) seek such relief from an arbitral tribunal constituted on the merits. Having recourse to state courts has downsides that many arbitration users have sought to avoid, and seeking relief from the arbitral tribunal may take too long especially, when the requested measure cannot await the constitution of the arbitral tribunal. In an attempt to fill this perceived void and satisfy a demand from users, ICC adopted its emergency arbitration provisions as part of the 2012 ICC Rules revision. The EA Provisions (Article 29 and Appendix V of the 2012 and 2017 ICC Arbitration Rules are not ICC’s first attempt to address pre-arbitral relief. In 1990, ICC introduced its Pre-Arbitral Referee Procedure that is still in force today but has been relatively rarely used.

EA applications have increasingly been filed with ICC and 98 applications had been received as of the morning of the Launch on 3 April 2019. Emergency arbitration has rapidly developed as an important new tool to users of arbitration and has been incorporated in many worldwide institutional and ad-hoc arbitration rules over the last decade. As the ICC Court and other arbitral institutions have had practical exposure to EA provisions, they are now able to examine the EA mechanism with an aim to:

  • further increase transparency and predictability of the process;
  • improve the process to best suit users´ needs by explaining what has been done by others to orderly conduct these procedures;
  • protect due process and avoid abuse of the mechanism; and
  • stimulate efficiency and facilitate the enforcement of, and compliance with, EA orders.

The ICC Task Force on EA Proceedings had these exact same objectives.

In its research capacity, the Commission produces reports and other technical documents on legal and practical aspects to dispute resolution and proposes tools for efficient and cost-efficient management settlement dispute resolution.

The idea for this Task Force arose during a visit of ICC Netherlands to the ICC Headquarters in March 2014 when discussing the current projects of the Commission. Coming from the Netherlands, which is a developed and interim relief friendly jurisdiction, Marnix Leijten expressed the interest in examining the substantive criteria used in EA proceedings. The institutional pen was taken to draft a proposal and the Commission’s Steering Committee, then chaired by Christopher Newmark, approved the creation of the Task Force in October 2014.

The Task Force’s scope of work excluded the study on the availability of interim relief (i) in arbitration proceedings on the merits, (ii) in state courts prior to, or pending, an arbitration on the merits, nor include expedited arbitration on the merits. The Task Force’s mandate did not either include the question as to whether ICC EA relief should be available in investment arbitration – as the current status under the ICC Rules do not provide for it. However, as interim relief in arbitrations on the merits and/or in front of state courts are alternatives to emergency arbitration and thus comparable by nature, the Task Force will endeavor to identify the practical advantages and disadvantages of emergency arbitration over these alternatives.

Research was conducted to analyse the first ICC 80 EA applications to understand how EAs have conducted the proceedings and decided the relief requested. The Task Force also received 45 national reports, now included in the Annex, addressing questions regarding the status of EA proceedings under local laws, including at the recognition and enforcement stage. The Task Force was comprised of a total of 139 members, which were nominated by 92 ICC National Committees and Groups or directly appointed by the Commission’s Chair in light of their experience as EAs in ICC EA proceedings. Five other arbitral institutions, such as SIAC, HKIAC, LCIA, SCC and the Swiss Chambers’ Arbitration Institution shared their experiences with their respective EA mechanisms.

Six Task Force meetings were held, including one special meeting with the ICC Court’s Secretariat. The Task Force’s work was discussed and reviewed by the Commission members at seven of its bi-annual meetings (in Vienna, Washington, Sydney, and Paris) and approved by an overwhelming majority vote in Rome in October 2018.

‘Clarifying concepts: applicability, admissibility, jurisdiction’

The first panel was moderated by Alexander G. Fessas (Secretary General, ICC Court; Director of ICC Dispute Resolution Services). James Hosking (Partner, Chaffetz Lindsey LLP, New York; Co-Chair of the Task Force) discussed the threshold issues of applicability of the EA provisions, the admissibility of applications for emergency relief and the underlying jurisdiction of EAs. He emphasized the role of the ICC Court President in pre-screening EA applications on the basis of Articles 29(5) and 29(6) of the ICC Arbitration Rules and further explained the importance of the ‘cannot await the constitution of the tribunal’ criterion for admissibility.

J. Hosking provided examples of jurisdictional objections that the EA is expected to address under Article 6(2), Appendix V. He noted that threshold objections on admissibility, applicability and jurisdiction were raised in almost 75% of EA applications, and that the Report therefore provides invaluable insight into how to navigate these difficult issues. While acknowledging the flexibility provided under the ICC Rules, Mr Hosking noted that the Task Force has been able to distill practical advice on how best to handle emergency arbitration proceedings, drawing on the combined experience of arbitrators, counsel, commercial users, and the institution itself. He concluded that there is no other comparable resource available to the international arbitration community.

Cecilia Carrara (Partner, Legance – Avvocati Associati, Rome; Member of the ICC Court; Member of the Task Force) referred to the first 80 EA cases analysed for the purpose of the Report, highlighting that challenges on threshold issues were successful in 21 cases. Ms Carrara looked at the five identified categories of challenges:

  • challenges on admissibility and jurisdiction on the basis of the existence of multi-tier disputes clauses;
  • challenges on the date of the agreement,
  • challenges with regard to concurrent proceedings in national courts,
  • challenges resulting from the involvement of a party that was arguably not a signatory or successor to the arbitration agreement, or
  • challenges on the basis that the scope of relief sought was inappropriate and/or that the EA lacked authority to order the interim measure.

While EA Provisions do not specify the law applicable to threshold issues, C. Carrara noted that EAs applied the lex arbitri or found that their determination on threshold issues was to be guided by other applicable laws, such as the lex causae. The majority of the EAs have followed the approach that international sources provide the appropriate standards also in the context of threshold issues. However, no specific trend may be detected so far, and decisions on this matter seem to have been grounded on the specificities of the cases at stake.

‘How urgent is emergency relief? : Predictability and substantive standards’

This second panel was moderated by Ziva Filipic (Managing Counsel, ICC Court, Paris) and dealt with the substantive standards to decide whether to grant the requested relief.

Fernando Mantilla-Serrano reminded that the Report does not constitute rules or guidelines on what types of standards the EA should use. It rather aims to share the experience and data with users that would otherwise remain fragmented and partial knowledge of the few that have resorted to ICC EA proceedings. In his view, the EA is the ‘judge’ of the urgency and the urgent preservation of the status quo, which appears as a key element to be considered by the EA. The discussion set out some of the questions raised by the Task Force such as whether (i) urgency been defined differently for emergency relief than for ‘normal’ interim relief; (ii) any other criteria of ‘urgency’ – other than ‘cannot await the constitution of the arbitral tribunal’– was considered to grant emergency relief on the merits.

An interesting debate followed between Fernando Mantilla-Serrano and Marnix Leijten (Partner, De Brauw Blackstone Westbroek N.V. , Amsterdam; Vice President of the ICC Court; Co-Chair of Task Force) on whether the ‘urgency’ criterion is the only standard for emergency relief or whether other standards have been considered and applied. Marnix Leijten emphasised the importance of the ‘irreparable harm’ prong of the urgency test and concluded that many EAs used the ‘serious irreparable harm’ standard. On this issue, he noted that EAs have also considered that when harm is compensable by damages, it does not necessarily preclude irreparable harm. He concluded by saying that the question of substantive standards is a matter of balance of equities; in the end it is the EA who decides whether it makes sense for the EA to grant the emergency relief.

‘The conduct and strategy of emergency arbitration’

The last panellists, Diana Paraguacuto-Maheo (Partner, Foley Hoag LLP, Paris; Alternate Member of the ICC Court; Co-Chair of the Task Force) and Juan Pablo Argentato (Counsel, ICC Court, Paris), explained how the Report brings some useful insights on the context and decisions of the 80 ICC cases and on how EAs have structured their proceedings (number of rounds of submissions, use of witness statements, whether there should be a (telephone) hearing, etc.) even if there is no universal or ‘one size fits all’ approach with regard to the conduct of an emergency arbitration.

On the use of emergency arbitration for strategic purposes and the post-order compliance issues, Diana Paraguacuto-Maheo explained why enforceability issues should not be overstated by users when deciding whether to go before a court or file an application before an EA: The Report shows that, in practice, parties have significantly complied with the EA order, perhaps to avoid being viewed as a problematic party in the eyes of the upcoming arbitral tribunal. D. Paraguacuto-Maheo also noted another important finding in the Report, as it shows that the settlement rate is relatively high in cases initiated with an EA application; with 25 cases out of 80 ICC EA cases having settled on the merits before the issuance of the final award. It is likely that EA proceedings can give the parties a better understanding of their chances of success, especially when the EA expressed views as to the strength or weakness of any of the parties’ positions or when the requested measure was closely tied to the object of the arbitration on the merits.

Concluding remarks

Carita Wallgren-Lindholm (Independent Arbitrator Lindholm Wallgren, Attorneys Ltd., Helsinki; Chair, ICC Commission on Arbitration and ADR) closed the launch by thanking the Task Force, its co-chairs and all others involved for a successful outcome, with special thanks to Alveen Shirinyans.

The Task Force ‘Emergency Arbitrator Proceedings’ was co-chaired by James Hosking, Marnix Leijten and Diana Paraguacuto-Mahéo, with significant drafting contributions from Cecilia Carrara, Olivier Caprasse and Fernando Mantilla-Serrano. The analysis of the first 80 ICC Emergency Arbitrator cases has largely been conducted by Dr. Hélène van Lith, Secretary to the ICC Commission on Arbitration and ADR.