The emergency arbitrator mechanism is one of the most dynamic tools of modern arbitration law, stepping in when urgent interim relief is needed before the arbitral tribunal is constituted. This article provides a comparative analysis of ICC, ISTAC, and LCIA emergency arbitrator rules.
In international commercial arbitration, resort to interim measures is frequently necessary to protect the parties' rights pending the final decision on the merits. However, the constitution of the arbitral tribunal — selection of arbitrators, acceptance declarations, and procedural preparations — can take months. During this period, there is a risk of evidence being lost, assets being dissipated, or irreparable harm occurring. The emergency arbitrator mechanism has been incorporated into modern arbitration rules precisely to fill this gap.
1. The Concept of Emergency Arbitrator and Historical Development
An emergency arbitrator is a temporary arbitrator appointed by an arbitral institution to evaluate an urgent request for interim measures during the period before the arbitral tribunal has been constituted. This mechanism was first adopted by the ICDR in 2006, followed by the ICC in 2010, SCC and SIAC in 2012, LCIA in 2014, and subsequently by ISTAC and numerous other institutions. The emergency arbitrator procedure eliminates the need to resort to state courts, thereby preserving the integrity of the arbitral process and providing parties with a rapid remedy.
2. Emergency Arbitrator Under ICC Rules
Article 29 and Appendix V of the ICC Arbitration Rules regulate the emergency arbitrator procedure. Under the ICC system, an application for an emergency arbitrator may be filed simultaneously with or subsequent to the submission of the request for arbitration to the ICC Secretariat. The President of the ICC Court normally appoints the emergency arbitrator within two days of receipt of the application. The emergency arbitrator must render their decision (order) within fifteen days of appointment. A distinguishing feature of the ICC system is that the emergency arbitrator's order is binding on the parties but may be modified or revoked by the arbitral tribunal. The 2021 Rules further strengthened the emergency arbitrator procedure.
3. Emergency Arbitrator Under ISTAC Rules
Article 6 of the Istanbul Arbitration Centre (ISTAC) Arbitration Rules regulates the emergency arbitrator procedure. Under the ISTAC system, parties may apply for an emergency arbitrator in disputes arising after the date of the arbitration agreement. The ISTAC Secretary General appoints the emergency arbitrator within two days of receipt of the application. The emergency arbitrator renders their decision within fourteen days of receiving the file. ISTAC's position within Turkish arbitration law is of particular importance for the effective utilisation of the emergency arbitrator mechanism in Türkiye-connected disputes.
4. Emergency Arbitrator Under LCIA Rules
Article 9B of the LCIA Arbitration Rules regulates the emergency arbitrator procedure. The most significant distinguishing feature of the LCIA system is the more flexible timeframe for the emergency arbitrator's decision. The LCIA Court appoints the emergency arbitrator within three days of receipt of the application. No fixed deadline for the decision is prescribed; rather, the emergency arbitrator is expected to render the decision "as soon as possible." The LCIA also offers an expedited formation procedure alongside the emergency arbitrator procedure.
5. Comparative Assessment: ICC, ISTAC and LCIA
Significant differences exist among the emergency arbitrator rules of the three institutions. In terms of appointment timeline, ICC and ISTAC provide for two days, while LCIA allows three days. Regarding decision deadlines, ICC imposes a fifteen-day limit, ISTAC a fourteen-day limit, while LCIA adopts a flexible approach. As to the nature of the decision, in all three institutions the emergency arbitrator's order is binding on the parties but may be modified or revoked by the arbitral tribunal. In terms of costs, ICC and ISTAC apply fixed fee schedules, while LCIA uses an hourly rate system. Application conditions may also vary depending on the date of the arbitration agreement.
6. Interaction with Turkish Law
The International Arbitration Act No. 4686 and the arbitration provisions of the Code of Civil Procedure No. 6100 are relevant to the status of emergency arbitrator decisions under Turkish law. Under Turkish law, pre-arbitral interim measures are rendered by state courts. The question of whether emergency arbitrator decisions can be directly enforced before Turkish courts is contested. The prevailing view is that emergency arbitrator decisions do not constitute "arbitral awards" and therefore cannot be enforced under the New York Convention. However, parties are expected to comply with such decisions within the framework of their contractual obligations arising from the arbitration agreement.
7. Conclusion and Practical Recommendations
The emergency arbitrator mechanism is an indispensable tool for the protection of parties' rights during the critical period before the constitution of the arbitral tribunal in international arbitration. When drafting arbitration agreements, ensuring the availability of the emergency arbitrator procedure; when filing applications, correctly applying the relevant institution's rules and time limitations; and following the decision, assessing its enforceability are of paramount importance. For advisory services on international arbitration and emergency arbitrator proceedings, please contact us at info@guzeloglu.legal.