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Young ICCA Webinars: Emergency Arbitration

Date:
28 July 202110:00 - 11:15(CEST)

Post Event Report

by Andra-Loana Curutiu (LL.M Candidate, Stockholm University, Sweden) and Halleluyah Oluwadara Afon (Junior Associate, Strachan Partners and LL.M Candidate, Stockholm University, Sweden)

 

On 28th July 2021, Young ICCA held a webinar titled “Emergency Arbitration” (the “Webinar”). The Webinar focused on providing an introduction to emergency arbitration.

 

Young ICCA co-chair, Maria Athanasiou, opened the Webinar by giving a brief welcome to the participants as well as an overview of Young ICCA and its activities, particularly the opening of applications for the 8th Cycle of the Young ICCA Mentoring Programme.

 

Dilber Devitre, an Associate at Homburger, moderator for the Webinar then provided a brief background of the topic and introduced the speakers.

 

The first speaker, Victoria Khandrimaylo, Counsel at the Hong Kong International Arbitration Centre (HKIAC), gave a presentation on the general features of an emergency arbitration proceeding and briefly outlined the emergency arbitration (“EA”) procedure from the perspective of the HKIAC.

 

Ms. Khandrimaylo stated that the EA mechanism was introduced into HKIAC Administered Arbitration Rules (HKIAC Rules) in 2013. She noted that the HKIAC has since then handled about 30 applications for the appointment of an emergency arbitrator.

Based on her experience, she shared some practical notes regarding EA under the HKIAC Rules. She explained that the emergency arbitration mechanism has been  available since the 1st November 2013 for arbitration agreements entered into on or after that date, unless expressly agreed otherwise by the parties. The application itself should contain, among others, the circumstances that give rise to the application and justification on why Emergency relief  is needed on an urgent basis that cannot await the constitution of the arbitral tribunal. According to the current HKIAC Rules (2018), the application for EA can be done before, concurrent with or after the filing of the notice of the arbitration. However, if the notice for arbitration is not filed within 7 days after the filing of the application, the EA will be terminated. In addition to the time-frame, the EA requires payment of the Application Deposit. The Application Deposit comprises of the HKIAC’s emergency administrative fees and the emergency arbitrator’s fees and expenses.

She shared that on average, it takes 16 hours for HKIAC to appoint an emergency arbitrator, following the receipt of an application to appoint an emergency arbitrator, and that the emergency arbitrator has 14 days to render the award under the HKIAC Rules (2018) and 15 days under the HKIAC Rules (2013).

 

Ms. Elizabeth Chan, Associate at Three Crowns, then provided 10 tips for Junior Counsel when working on EA applications. Given the shorter timelines of EA proceedings, she emphasized the need to ensure that the application and any related submissions are accurate, not least because they will be part of the overall arbitration record. Some of the tips she shared are:

 

  1. Timing of an EA Application: Ms. Chan highlighted the importance of checking whether the EA application (EAA) needs to be submitted at the same time as the request for arbitration. In addition, she advised applicants  cto let the relevant institution know that an application will be made soon, so that they can start considering potential emergency arbitrator appointments;
  2. Follow Filing and Payment Requirements: It is key to check and ensure compliance with the relevant institutional rules for the filing of the EAA, such as payment deadlines, format and any policy changes brought by COVID-19. In addition, Ms. Chan mentioned that the application should include proof of payment or alternatively payment could be made before submitting the EAA;
  3. Include all Required Information: The EAA must be supported by all required documents, exhibits, evidence of signatories (including evidence of changes of ownership), details of third-party funding (if applicable) and other relevant information as required by the applicable rules;
  4. Brief Admissibility and Jurisdictional Issues: Ms. Chan emphasized the importance of confirming whether the EA procedure is available by looking at the arbitration agreement, as well as any applicable rules or laws;
  5. Written Submissions: Given the urgency of the EA procedure, Ms. Chan recommended that the length, number and scope of submissions be kept to a minimum;
  6. Witness Statements: Witness statements are not typically part of the EAA, but they may be sometimes necessary. However, counsel should consider if they are necessary at all, especially as any cross-examination of witnesses would prolong EA proceedings.   

 

The last speaker for the webinar was James Hosking, the co-founder of the international dispute resolution boutique Chaffetz Lindsey.  In his presentation, Mr. Hosking talked about his experience as an arbitrator in EA proceedings and the issues which normally arise during such proceedings. He also discussed his role as co-chair of the ICC’s Task Force on Emergency Arbitrator Proceedings and encouraged attendees to use the ICC’s report, available on the ICC Commission’s website, as a resource.

 

Mr. Hosking emphasized that the EA mechanism is a unique tool.  He urged participants to “bear a thought for the poor emergency arbitrator” who is appointed on a short notice and has to come up with a decision within an equally abridged timeframe. He, therefore, stressed the importance of keeping the applications as simple and short as possible, highlighting only the bare essentials necessary to get the relief sought. For this reason, he advised that supporting witness statements and exhibits should be kept to the minimum and provided on the understanding that evidentiary hearings would be permitted only where absolutely necessary.

 

Generally, Mr. Hosking noted that less than half of ICC applications for emergency arbitration proceedings result in the requested relief being granted.  While data suggests this is in part due to a large number of settlements, applicants should be realistic that they have a high burden to overcome.  In this respect,  he identified the most efficient tactic for a respondent would be to convince the Tribunal that the application should be rejected due to the lack of urgency.

 

At the end of the session, there was a Q & A Session which included questions submitted by participants when they registered for the webinar as well as live questions from the audience. The session was closed by Mr. Rahul Donde (Young ICCA Events Co-director) who thanked the participants for their participation and informed them of the Workshop that would follow the Webinar.