Is the Emergency Arbitrator Procedure Suitable for Investment Arbitration?

Contemporary Asia Arbitration Journal, Vol. 10, No. 1, pp. 71-112, May 2017

42 Pages Posted: 5 Jun 2017

See all articles by Janice Lee

Janice Lee

Queen Mary University of London; University of the Philippines College of Law

Date Written: May 31, 2017

Abstract

Due in part to the increasing cross-fertilization between commercial and investment arbitration, there has been an increasing overlap of procedural rules, substantive standards and remedies used in both disciplines.

In particular, the Emergency Arbitrator (EA) procedure, which has become a useful tool for parties in commercial arbitration to obtain urgent relief prior to the constitution of the tribunal, has also become available in investment arbitration under certain institutional rules. To date, there have been at least 5 known cases of EA appointments in investment arbitration, and it is not inconceivable that more will arise.

This paper provides a brief background to EA procedures and the current limited practice of EAs in investment arbitration. Because of its origins in commercial arbitration, the EA procedure presents a number of peculiar issues when used in investment arbitration: First, at the initiation of the EA case and from the respondent state’s point of view, there is the question of the respondent state’s consent to the EA procedure itself and, consequently, the reliefs awarded by an EA. Second, at the termination of the proceedings and from the investor claimant’s point of view, the question arises as to the feasibility of enforcing an EA decision in a domestic court, particularly that of the host state. The paper presents the current discourse on the issues raised above.

Lastly, it is proposed that the following considerations must be taken into account in further refining the EA procedure for investment arbitration: (a) the availability of an enforcement mechanism of EA decisions that does not rely exclusively on the New York Convention; and (b) the provision of viable alternatives for states in the event of an adverse decision.

Keywords: Emergency Arbitrator, Emergency Arbitrators, Investment Arbitration, State Consent, State Sovereignty, Urgent Interim Relief, Emergency Relief, Damages, State Parties, Enforcement, Arbitration Rules, Enforcement in Domestic Courts

Suggested Citation

Lee, Janice, Is the Emergency Arbitrator Procedure Suitable for Investment Arbitration? (May 31, 2017). Contemporary Asia Arbitration Journal, Vol. 10, No. 1, pp. 71-112, May 2017, Available at SSRN: https://ssrn.com/abstract=2977995

Janice Lee (Contact Author)

Queen Mary University of London ( email )

United Kingdom

University of the Philippines College of Law ( email )

Malcom Hall
University of the Philippines, Diliman
Quezon City
Philippines

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