1. Emergency Proceedings
BCDR-AAA/SCC Joint Conference
18 November 2018
by Ginta Ahrel

2. The concept of Emergency Arbitrator
2006 ICDR
2010 SCC and SIAC
2012 ICC
2013 HIAC
2014 LCIA
and others
Not in ICSID
Not in UNCITRAL

3. Main features of the SCC EA Rules
”Opt out” clause
Application for EA can be made until the case has been referred to an arbitral tribunal
Not an ex parte procedure
SCC Rules Article 37 on Interim measures:
“(1) The Arbitral Tribunal may, at the request of a party, grant any interim measures it deems appropriate.
(2) The Arbitral Tribunal may order the party requesting an interim measure to provide appropriate security in connection with the measure.
(3) An interim measure shall take the form of an order or an award.[…]”

4. SCC EA Procedure Overview

5. EA in investment cases under the SCC Rules
SCC Rules do not exempt investment cases from application of the EA procedure
7 emergency applications (5 granted in full or partially)
Relief most often requested is to order the Respondent to preserve status quo, i.e. refrain from implementing a decision or executing court judgment

6. EA in investment cases under the SCC Rules (cont.)
Prerequisites for granting a request:
Prima facie jurisdiction
Prima facie successful case on merits
Urgency and risk for irreparable harm
Proportionality

7. Issues related to jurisdiction
Applicability of EA Rules to the dispute?
Cooling-off period?

8. Enforcement
EA decisions are enforceable in very few jurisdictions (Hong Kong, Belgium)
Is an EA award enforceable under New York Convention? Is it practical?
None of the Respondents in investment cases has complied with an EA award

9. from 1 January 2019 ginta.ahrel@westerberg.com
Thank you!
from 1 January 2019