B. Summary of key conclusions

7. The Task Force analysis of the first 80 ICC EA cases and 45 National Reports reveals that there is no universal approach to EA proceedings. This variety is apparent with respect to threshold issues, procedural matters, substantive standards and post-emergency arbitration considerations, and is first and foremost the consequence of the choice made in the ICC Rules to leave to the EA a considerable degree of discretion and flexibility. Acknowledging this advantage, the Report intends to contribute to the predictability of EA proceedings while leaving the EA’s flexibility intact.

8. A key finding based on the cases analysed in this Report is that relief has been granted only in a minority of ICC EA Applications. But this may not, of itself, be surprising: the nature of interim relief is such that it is only in exceptional cases that urgent relief is justified. Indeed, this appears to have been the experience with EA mechanisms under most other arbitral rules. It appears from the analysed cases that EAs are minded to strictly apply particular threshold requirements set by the EA Provisions, such as the key requirement that relief "cannot await the constitution of an arbitral tribunal" (Article 29(1)). Yet, EAs have in multiple cases been persuaded to grant interim relief and the EA Provisions are thus an important addition to the ICC Rules, filling a previously existing void.

1) Threshold issues

9. Issues of applicability, jurisdiction and/or admissibility have proven important as they were involved in 56 of the first 80 ICC EA cases studied, with 21 EA Applications rejected in whole or in part on these grounds. Of these 21 EA Applications, three were rejected in whole or in part by the President of the ICC International Court of Arbitration (the "President of the ICC Court" or "President") as part of the President’s "applicability" test pursuant to Appendix V, Article 1(5) of the ICC Rules.

10. There is no general consensus on the exact definitions of what constitutes "applicability", "jurisdiction" or "admissibility". For example, some EAs have reviewed the criteria set forth in Articles 29(5) and 29(6) as part of their analysis of the "admissibility" of the Application (pursuant to Article 6(2) of Appendix V) along with the criterion of Article 29(1), while others consider "admissibility" an issue of "jurisdiction". Likewise, many of the topics raised as jurisdictional may also be considered as affecting admissibility and applicability.

11. In order to give guidance to parties and EAs on how to address those preliminary and procedural issues, a summary of the Task Force’s findings is set out below.

12. As to the applicability of the ICC Rules. Under the ICC Rules (Article 1(5) of Appendix V), the President of the ICC Court "considers" on the basis of "the information contained in the Application" whether the EA Provisions apply with reference to Articles 29(5) and 29(6). These criteria have to be understood as an "applicability test" of the EA Provisions. Arguably, this applicability test does not bind the EA if the Application does proceed, as the test is performed only on the basis of the Application as such and without having the benefit of the respondent’s views. Thus, jurisdictional and admissibility issues remain to be decided by the EA, after the President’s decision on the applicability of the EA Provisions.

13. Importantly, while the President has on very rare occasions used his power to decide that the EA Provisions do not apply and thus rejected the Application, the President has in some cases allowed the EA Application to go forward subject to the EA’s final determination on threshold issues under Article 29(5) or 29(6). Even in the absence of a specific request, the EA will have to decide on such threshold issues if – as this has rather frequently been the case – the respondent invokes the EA’s lack of jurisdiction based on Article 29(5) or 29(6).

14. As to the jurisdiction of the EA. Under the ICC Rules (Appendix V, Article 6(2)) the EA "shall determine .… whether the emergency arbitrator has jurisdiction to order Emergency Measures". No explicit test is set forth in the ICC Rules to assess such jurisdiction however. EAs have often considered elements of Articles 29(5) and 29(6) as part of their threshold analysis on jurisdiction or even considered elements of Article 29(1). The Task Force considers the jurisdictional test to be performed by the EA to include whether an arbitration agreement concluded under the 2012 ICC Rules exists and to additionally require an analysis of the elements of Articles 29(5) and 29(6) of the ICC Rules where the respondent raises issues related to these elements. Whether or not the latter is part of a jurisdictional test or to be qualified as a separate threshold issue may depend on the specific national law or laws relevant to the Application. It is arguable that applicability overlaps with jurisdiction issues. As such, the same issues analysed by the President of the ICC Court when determining applicability may fall to the EA to be determined when analysing jurisdiction. The Task Force does not consider the urgency test of Article 29(1) to be a jurisdictional test, since this test focuses on the measure sought in the particular circumstances rather than on the more general question of the existence and scope of the arbitration agreement.

15. Many jurisdiction challenges have been raised in the context of one or more objections based on multi-tiered dispute resolution clauses, date of the agreement, concurrent jurisdiction, non-signatory/standing, or questions of the scope of relief/authority of the EA. Each of these objections turns on its own particular facts and application of relevant legal principles.

16. While there is no specific deadline in the EA Provisions for making jurisdictional objections, parties and EAs are encouraged to raise jurisdictional issues as early as possible to allow them to be considered to the fullest possible extent despite the time constraints inherent to EA proceedings.

17. As to the admissibility of the Application. Under the ICC Rules (Article 29(1)), a party may make an Application for emergency measures when it "needs urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal", and thus this criterion is to be understood as an admissibility test. After undertaking a prima facie assessment of whether the requested measure could await the constitution of the arbitral tribunal at the admissibility stage, EAs would subsequently further consider urgency when ruling on the merits of the Application.

18. The Task Force considered that "urgency", as a test to be met on the merits of the Application, is not to be measured only by reference to the test of whether the measures requested "cannot await the constitution of an arbitral tribunal" as set forth in Article 29(1) of the ICC Rules. Rather, the reference to the relief not being able to await the constitution of the tribunal provides temporal guidance on one aspect of what may constitute the necessary "urgent interim or conservatory measures".

19. The Task Force also supported treating urgency separately, first as part of the admissibility requirement of Article 29(1), and second, as part of the merits. In this way, the parties can consider arguing urgency afresh to the fully constituted arbitral tribunal (the admissibility requirement of Article 29(1) by definition does not apply in that context) and such approach may also limit any potentially preclusive effect an EA finding of urgency (or lack of urgency) may have on any judicial remedy.

20. The EA’s determination of threshold issues is not binding upon the arbitral tribunal once constituted pursuant to Article 29(3) of the ICC Rules. Indeed, given the absence of the time constraints inherent in EA proceedings, the tribunal deciding on the merits may decide to re-examine any objections, consider different evidence, or otherwise approach the issue in any way it wants irrespective of the EA’s Order.

21. The EA Provisions do not specify the law applicable to threshold issues. Most EAs consider that they are not bound by the lex contractus, yet, in a significant number of cases, EAs found that their determination was to be guided by, but not bound by, relevant national law and/or the lex arbitri.

2) Procedural matters

22. Subject to any agreement of the parties and any applicable mandatory law, Appendix V provides limited guidelines and encourages flexibility. The EA’s wide discretion has been embraced by most EAs who, eschewing any explicit reliance upon national procedural laws, choose instead to adopt procedures that best serve the needs of a particular case and to resolve the practical and procedural challenges created by the nature and urgency of the Application. In that context, prior consultation with the parties on procedural decisions may not be practically feasible, although parties are invited to identify to the EA as early as possible any mandatory provisions of relevant national laws. Soft law norms, albeit less relevant, might inspire EAs in their procedural discretion.

23. Acknowledging that EA proceedings are demanding on EAs and parties alike, the Task Force has included examples of case management techniques that the EA and the parties can use to promote efficiency of the EA proceedings. Parties and emergency arbitrators are encouraged to consult the ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration (see Section V on "Emergency Arbitrator") and the ICC Emergency Arbitrator Order Checklist.1 The Order Checklist is a tool that fosters uniformity as to form and hence facilitates the Secretariat’s informal review of the Order when time is of the essence. An initial telephone case management conference was also highly recommended, and such conference was held in a substantial number of cases. The case management conference can be used not only to address purely procedural issues but also to identify any temporary orders needed pending the final EA Order, decide how evidence will be presented and discuss the substantive standard to be applied in determining the Application.

24. Although permitted by some other institutional rules, the conclusion of the Task Force is that true ex parte Orders - where the Order itself is issued prior to the respondent being notified of the Application - are incompatible with Article 1(5) of Appendix V of the ICC Rules. There was some support for a less onerous form of ex parte procedure in which the EA might issue an initial Order to preserve the status quo for the duration of the EA proceedings before the responding party has filed its response. Due process concerns have been voiced to which procedural solutions have been proposed including granting the respondent a very short deadline to object to the temporary measure and/or limiting the duration of the temporary measure (unless extended after the respondent has been granted an opportunity to be heard on it).

25. Given the time constraints and limited effect of the EA proceedings, the EA should at a minimum consider adopting some of the typical procedural innovations in arbitrations under the ICC Expedited Procedures Provisions of Appendix VI to the ICC Rules. Consequently, EAs could in appropriate circumstances decide the case on documents only, with no hearing and no examination of witnesses, and limit the number, scope and length of submissions. The only limit to the EA’s discretion is to ensure that each party has a reasonable opportunity to present its case.

26. In most cases however, EAs have adopted a more classical approach, with a hearing and without witness evidence.

27. It is the applicant’s burden to establish a prima facie compelling case that the requested measures are justified and required. Because many Applications have focused on merely preserving the status quo pending appointment of the tribunal deciding on the merits, extensive factual allegations are not always required.

28. As in any other ICC procedure, if a respondent fails to participate, it should still be notified of all communications in the emergency arbitration.

29. The ICC EA proceedings are almost invariably concluded within, or very shortly after, the 15day deadline foreseen in the ICC Rules.

3) Substantive standards

30. As to the norms governing consideration of EA Applications, and in the absence of prescriptive norms applicable to EAs, most EAs have applied substantive criteria developed in connection with the granting of interim measures by arbitral tribunals and by reference to standards distilled from international arbitration practice rather than in accordance with any specific domestic laws. This is not to say that the lex contractus or the lex arbitri have not sometimes been considered. An approach based on international practice is consistent with the parties’ expectations and will encourage predictability and uniformity of results. Since the criteria governing the granting of interim relief are arguably best qualified as procedural rather than substantive law norms, reliance on any domestic norms might also be considered less appropriate.

31. As mentioned, the requested urgent measures are admissible when they "cannot await the constitution of an arbitral tribunal" (Article 29(1) of the ICC Rules). In practice, the interpretation and scope of said requirement has been far from uniform and EAs have also considered additional criteria stemming from international practice of arbitral tribunals with interim measures.

32. The urgency criterion is a high standard. The lack of sufficient urgency is a very common basis for denial of an emergency measure. In addition to the urgency, in the sense of a relief which "cannot await the constitution of an arbitral tribunal" (Article 29(1)), EAs have also considered other urgency factors such as, inter alia, the applicant’s contribution to the urgency or whether the applicant has demonstrated that the relief requested avoids imminent or irreparable harm. The application of the latter criterion as a decisive element in itself arguably increases the standard of urgency required. The Task Force notes that while the criterion of the risk of irreparable harm has regularly been considered, it has not been applied as a relevant factor consistently, let alone as a self-standing condition, whether as part of the urgency test or otherwise as part of the substantive test.

33. In addition to the urgency requirement, EAs routinely consider a mix of substantive criteria applicable in deciding applications for interim measures outside the EA context. These criteria include i) the likelihood of success on the merits (fumus boni iuris), ii) the risk of irreparable harm (periculum in mora), iii) the risk of aggravation of the dispute, iv) the absence of prejudgment on the merits, and v) proportionality/balance of equities.2 EAs tend to assess which elements are relevant in light of the particular circumstances of the case, and similarly which weight is to be afforded to each of them.

34. EAs have also taken into account secondary considerations such as the provision of security from the requesting party in accordance with Article 28 of the ICC Rules and whether the relief requested is appropriate. Orders granting security remain rare in EA practice. There is no uniform approach as to the limits of what could be appropriate relief, although it seems understood that the requested measure must be of a preliminary nature independent of the final relief sought. It is unsettled whether or to what extent, declaratory relief is available in EA proceedings.

4) Post-emergency arbitration considerations

35. As EA proceedings have become more prevalent, concerns about the enforceability of EA decisions have given rise to numerous debates. Enforceability concerns have principally arisen from the status of the EA, the interim nature of the EA decision and the specific form of the EA decision. The report considers these hurdles to enforceability based on an analysis of 45 National Reports, keeping in mind that they should not be overstated as the data suggests that, in the vast majority of cases, parties comply voluntarily with EA decisions. In practice, the responding parties may be inclined to comply voluntarily with EA decisions in order to avoid the negative consequences non-compliance may have in the arbitration on the merits.

36. Given the relatively recent nature of EA proceedings, and with the exception of Hong Kong, New Zealand and Singapore, there is at present no provision in national laws expressly providing for enforcement of EA orders and, similarly, there is limited case law. Consequently, the analysis set forth in the Report is only based on the views of National Committees and Task Force members and should be taken with caution.

37. From the analysis of the National Reports, no uniform interpretation but only trends emerge:

(i) Most reports from countries that have incorporated the UNCITRAL Model Law tend to favour enforceability of EA decisions.

(ii) In those countries where the UNCITRAL Model Law has only inspired the local arbitration law, the position as to enforceability varies widely.

(iii) In the USA, where the UNCITRAL Model Law plays little or no role, there is a growing body of case law on EA decisions, in which such decisions are treated just as interim arbitral awards.

(iv) In countries where statutory provisions allow arbitral tribunals to grant interim measures, national laws and practice often draw distinctions between domestically seated and foreign seated arbitration.

(v) Where arbitral tribunals do not have general powers to grant provisional and conservatory measures either by express provision of the law or because the silence of the law is interpreted as a prohibition, the direct enforceability of EA decisions is unlikely.

38. The characterisation of the EA decision as an "order" or an "award" under the relevant national law is of concern in some jurisdictions when it comes to enforceability, while in most jurisdictions this distinction as such is not decisive. It is clear to most commentators of the New York Convention that interim measures differ from final awards due to the provisional nature of interim measures as opposed to the final nature of an award. Hence, except in few jurisdictions, enforceability of orders is unsettled.

39. Notwithstanding such uncertainty, the increasing use of EA proceedings worldwide suggests that users are not discouraged by enforceability concerns. This is so because EA proceedings benefit from high levels of compliance by the parties, from the support of local courts and from the tribunal on the merits.

40. Compliance issues related to the ordered emergency measures, excluding costs, were encountered in only three cases out of the 23 ICC EA proceedings where an emergency measure was ordered.

41. In the event of non-compliance, the successful applicant can attempt to seek support from local courts in an enforcement action, particularly in UNCITRAL Model Law inspired countries, or potentially in a breach of contract claim. Interestingly, EA decisions, even if not complied with, could influence local courts to support the decision of the EA.

1
All ICC Notes and Checklists are available at https://iccwbo.org/dispute-resolution-services/arbitration/practice-notes-forms-checklists/ and in the ICC Digital Library (http://library.iccwbo.org/dr-practicenotes.htm).

2
See infra paras. 151 et seq. of the Report.