Emergency Arbitration Meets the Courts

Abstract

First encounters often do not go entirely as expected. This is particularly the case where there has been much trepidation prior to the meeting. Often, this turns out to have been both unnecessary and counterproductive. After initial contact, it may become clear, sometimes immediately, that there was nothing to be concerned about. Fear may morph into empowerment as a bright and certain future suddenly emerges.
When emergency arbitration first appeared in international arbitration, serious doubts, and at times vociferous opposition, were expressed in some quarters as to the viability of the procedure, and whether courts would, or even should, recognize and enforce decisions issued by emergency arbitrators. It is fair to say that the enforceability debate has dominated emergency arbitration jurisprudence. However, as has been identified, enforceability is ‘the wrong debate’. The debate has given rise to negative perceptions about emergency arbitration, with the focus on negative risks (viz. a court refusing enforcement) as opposed to positive outcomes (viz. obtaining urgent relief, with reported high levels of party compliance, thus avoiding the need to go to court). The debate has also seen other contentious and complex issues in emergency arbitration not receive the attention they deserve, including most prominently, the role of the seat of emergency arbitration, applicable laws, and the application of due process norms.