Challenging the Enforcement of Emergency Arbitrator Decisions

Abstract

There is a growing consensus that emergency arbitration is now a permanent and integral part of international arbitration. Commentators and practitioners recognise the significance of the emergency arbitrator mechanism in protecting the parties’ assets and interests. In emergency arbitration, institutional rules give a solo arbitrator, called the emergency arbitrator, the power to grant an urgent or emergency interim measure prior to an arbitral tribunal’s constitution. The enforcement of emergency arbitrator decisions, however, poses a pervasive doubt as to the efficacy of the mechanism. This article discusses the three primary challenges to the enforcement of emergency arbitrator decisions: (A) the nature of emergency arbitrator decisions, (B) the requirement of finality of an arbitral award, and (C) the nature of an emergency arbitrator. These challenges to enforcement have posed and will continue to pose a significant challenge to courts. The limited number of cases, thus far, portend a landscape of conflicting decisions that pave the way for further challenges to the enforcement of emergency arbitrator decisions. The article concludes by recommending measures that will increase the enforceability of emergency arbitrator decisions, highlighting the necessity of amending the New York Convention if emergency arbitration is to become a permanent feature of international arbitration.