The enforceability of the interim measures granted by the emergency arbitrator
Promovendus: Mw. J. Zhang
Promotores: Prof.Mr. G.R. de Groot, Mr. S.F.G. Rammeloo
Duur: 1/9/2016 - 31/8/2020
The emergency arbitrator mechanism is used as an urgent solution when the interim measures are needed before the constitution of the arbitral tribunal. Due to the confidentiality, and considering the process for national courts to issue the interim measures is usually time-consuming and expensive, the need for the emergency arbitrator is increasing. From the original 2006 ICDR Rules, the world major arbitral institutions adopted this set of rules, LCIA Rules 2014. However, there are some fatal problems regarding this mechanism. In the proposal, I will address them accordingly. The first one is the theoretical determination. There are two sub issues in this part, Firstly, the status of the emergency arbitrator. Is emergency arbitrator an arbitrator? If it is not, then what is the nature of the emergency arbitrator? Secondly, the status of the interim measures granted by the emergency arbitrator will be discussed. Is the decision made by the emergency arbitrator contractual, meaning it is actually a new contract? Or, is it a binding and enforceable decision in judicial manner like an arbitral award? The second one is the dilemma in legal practice, mainly based on case study. According to the legal source, this part would be divided into two issues. Firstly, the enforcement of the interim measures granted by the emergency arbitrator under the New York Convention in foreign countries will be discussed. The barriers focused on the formality and finality of the decision. Secondly, the enforcement of the interim measures in the seat of arbitration under the national legislation will be discussed. It is global trend for regions like Singapore and Hong Kong to recognize and enforce the interim measures granted by the emergency arbitrator. The third part will involve the necessity and possibility of harmonization of emergency arbitrator mechanism will be analyzed. After a full systematic analysis and discussion, some suggestion and models for building a better emergency arbitrator mechanism will be provided to promote the development and improvement of emergency arbitrator mechanism and international commercial arbitration, in the end, to promote international trade.