Since 2006, and as of December 31, 2020, the ICDR has administered a total of 119 applications for emergency measures of protection. Of those, 85 were filed under the ICDR International Arbitration Rules, 32 were filed under the AAA Commercial Arbitration Rules, and 2 were filed under the ICDR Canadian Arbitration Rules. In 53 cases the emergency relief was granted partially or in full, in 29 cases the relief was denied, in 19 cases the parties settled, and in 17 cases the request was withdrawn. One case was pending.
Regarding the procedure itself, the ICDR International Arbitration Rules regulate emergency arbitrations in its Article 7. Article 7 requires a party seeking emergency relief to set forth in their application a) the nature of the relief sought; b) the reasons for the emergency; c) the reasons why the party is likely to be entitled to the relief; and d) the injury or prejudice if relief is not granted. If the application is filed with the notice of arbitration, it must include payment of the normal initial filing fee corresponding to the case. The ICDR does not charge any additional administrative fees for emergency arbitrations, although applicants should bear in mind that the full deposit for the emergency arbitrator’s compensation will be billed to the applicant.
If the requirements of Article 7 are met, the ICDR appoints an emergency arbitrator within one business day of receiving the application. Once the emergency arbitrator is appointed, the parties have one business day from the time any disclosures are circulated to file a challenge. The emergency arbitrator has two business days from appointment to establish a schedule to consider the application, and may immediately schedule a conference call with the parties for this purpose. The emergency arbitrator also has the power to grant any interim or conservatory measures deemed necessary, in the form of an order or an award. In such an order or award, the emergency arbitrator’s decision must be reasoned and may be conditioned on providing appropriate security.
Overall, the ICDR emergency procedures have been very successful. Few modifications were made when the ICDR Rules were revised in 2021. Specifically, the revised rules established the aforementioned requirement (d) (injury if relief is not granted) and clarified that the application must include payment of any applicable fees. Article 7(3) was also amended to clarify that the emergency arbitrator has authority to rule on its own jurisdiction under Article 21 of the ICDR Rules. This change was intended to provide some guidance when a party challenges the jurisdiction of an emergency arbitrator, although the main tribunal may affirm, reconsider, modify, or vacate any order of the emergency arbitrator.
Claimants have requested various kinds of relief under the ICDR emergency procedures. In one case, a claimant sought an order to prevent irreparable harm due to respondent’s continuing use of the claimant’s confidential client’s data. The requested relief was granted. In another case, a claimant sought an order to enjoin respondent from disclosing their confidential website information. In this case, the requested relief was denied because the arbitrator did not want to anticipate the decision on the merits and decided to maintain the status quo, pending the tribunal’s final decision. In a third case, a claimant sought an order to prevent the removal of drilling equipment pending the outcome of the arbitration. The requested relief was granted.
Finally, in their orders or awards, emergency arbitrators typically address the requirements listed in Article 7, in addition to jurisdiction, prima facie establishment of the case, urgency, imminent danger of serious prejudice (necessity), and proportionality.