The London Court of International Arbitration has announced that its new LCIA Arbitration Rules have been formally adopted by the LCIA Court and the LCIA Board of Directors and will come into effect on 1 October 2014.
Article 9B of the new LCIA Arbitration Rules – Emergency Arbitrator provides that in the case of emergency at any time prior to the formation or expedited formation of the Arbitral Tribunal , any party may apply to the LCIA Court for the immediate appointment of a temporary sole arbitrator to conduct emergency proceedings pending the formation or expedited formation of the Arbitral Tribunal. By Article 9.14 of the New Rules, Article 9B does not apply where the parties have concluded their arbitration agreement before 1 October 2014 have not agreed in writing to ‘opt in’ to Article 9B, or the parties have agreed in writing at any time to ‘opt out’ of Article 9B. Reference should be had in this regard to the provisions of Articles 9.4 through 9.14 of the New LCIA Arbitration Rules (and the Articles mentioned therein).
While Article 9.5 requires notice of an application to all other parties of the application for the appointment of the “Emergency Arbitrator”, Article 9.7 provides that “The Emergency Arbitrator may conduct the emergency proceedings in any manner determined by the Emergency Arbitrator to be appropriate in the circumstances, taking account of the nature of such emergency proceedings, the need to afford to each party, if possible, an opportunity to be consulted on the claim for emergency relief (whether or not it avails itself of such opportunity), the claim and reasons for emergency relief and the parties’ further submissions (if any)…”
Article 9.2 makes it clear that Article 9B shall not prejudice any party’s right to apply to a state court or other legal authority for any interim or conservatory measures before the formation of the Arbitration Tribunal; and it shall not be treated as an alternative to or substitute for the exercise of such right. It further provides that during the emergency proceedings, any application to and any order by such court or authority shall be communicated promptly in writing to the Emergency Arbitrator, the Registrar and all other parties.
Reference should be had to the entirety of the new LCIA Arbitration Rules.
This writer was interviewed by Judy Van Rhijn of Law Times on the topic of emergency arbitration (see the April 8, 2013 edition of Law Times) about a year after 2012 ICC Rules of Arbitration offered a procedure for parties to seek urgent interim relief that could not await the constitution of an arbitral tribunal.
This writer was quoted in that article saying: “Firstly, you can probably not proceed ex parte, so it’s not suited to a Mareva injunction where you don’t want to give notice. Secondly, unlike a judicial intervention order, it will probably not affect third parties. It is more suited to a mandatory order for something to be done than for something to be frozen. It requires a case-by-case analysis.”
Ms. Van Rhijn further reported this writer’s recommendation to consider enforcement issues, particularly in circumstances involving international disputes where the enforcement of foreign judgments may become problematic. This writer said that “In most jurisdictions, there would be a question as to whether a court order or an arbitration order would be more enforceable.” and used the example of a dispute between Canada and Dubai, countries that are both signatories to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, where an emergency arbitrator’s order may therefore be a better choice in such a circumstance.
If you require advice or representation in cross-border litigation , international arbitration, or the enforcement of foreign judgments or arbitration awards in Ontario, Canada, please contact Gilbertson Davis LLP for an initial consultation.