Abstrakt

I. Introduction  In recent years there has been a significant increase in adoption of emergency arbitrator (hereinafter: ‘EA’) provisions into various arbitration rules1. It is pointed out that before adoption of EA provisions a party in need of emergency interim relief at the pre – arbitral stage had only two options: waiting for the constitution of the arbitral tribunal and ask the arbitral tribunal to issue an interim relief. However, in this situation the party risked that the order of arbitral tribunal would be too late and thus ineffective2. Second option was to seek by the interested party interim relief before national court, which also could turn out to be unsatisfactory due to unpredictability of time consumption that the court might have needed to examine such request3. To cure this situation and provide for parties alternative for national court, arbitral institutions have adopted provisions that allow obtaining interim relief at the pre – arbitral stage in quick and effective manner to better protect the parties’ relevant interests and therefore answer to their needs. EA provisions in general permit parties to apply to an EA for urgently needed provisional relief before a request for arbitration has been filed or the arbitral tribunal has been constituted4.  The 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration completed by Queen Mary University London School of International 27Arbitration, conducted over a six month period and comprised of two phases: an online questionnaire completed by 763 respondents (quantitative phase) and subsequently 105 personal interviews (qualitative phase) shows, that 93% of respondents favor the inclusion of provisions on EA in institutional rules. 38% favor this as a mandatory feature, whilst 55% think it should be included only where the parties have agreed it should be available5. Subsequently, the Survey shows that requests for appointment of an emergency arbitrator are rare: 66% of respondents have not applied in the last 5 years for appointment of an emergency arbitrator, 30% have requested appointment 1–5 times, 3% filed such request 5–10 times and 1% more than 10 times6. Interestingly, despite accessibility to interim relief through arbitration rules since around 5 years, the 46% of respondents answered that, if they needed to seek urgent relief before the constitution of the arbitral tribunal, they would choose recourse to domestic national court, while only 29% would file the request for appointment of EA and with 29% undecided respondents7. This is not surprising comparing to what has been listed as the most important factor influencing the choice of respondents as to deciding on national court and not on EA. 79% pointed out that the most important factor is “enforceability of any decision rendered”, followed by “perceived likelihood of success in the application for relief“ (40%) and “identity of the relevant domestic courts”...