Emergency Arbitration, as the name implies, is an urgent procedure that a disputing party may apply for interim measures before the constitution of the arbitral tribunal.

Before, during urgent situations prior to the constitution of the arbitral tribunal, the disputing party had no mechanism to invoke during the arbitral proceedings with respect to interim measures. This led the International Chamber of Commerce (ICC) to introduce the Pre-Arbitral Referee Procedure in 1990 in an attempt to solve this issue. In 2006, the International Center for Dispute Resolution (ICRD), a division of the American Arbitration Association (AAA), introduced the first emergency arbitration into its rules. Since then, many arbitral institutions have incorporated this procedure into their rules such as the Stockholm Chamber of Commerce (SCC) (2010), Singapore International Arbitration Centre (SIAC) (2010), ICC (2012), Hong Kong International Arbitration Centre (HKIAC) (2013), London Court of International Arbitration (LCIA) (2014) and National Commercial Arbitration Centre (NCAC) (2021).

A party wishing to apply for interim measures may file an application to the arbitration institution, which will then appoint the emergency arbitrator. An award or order for interim measure by an emergency arbitrator is generally issued between 8-15 days after the appointment of the emergency arbitrator. The emergency arbitrator has broad powers like the arbitral tribunal; however, its mandate ends upon issuing the award/order for interim measures. Upon its constitution, the arbitral tribunal is not bound by the decision of the emergency arbitrator and may review to modify, suspend, or terminate such decision. This means that one of the roles of the emergency arbitrator is to preserve the status quo on a temporary basis prior to the constitution of the arbitral tribunal which will then have the power to make a decision on interim measures and rules on its own jurisdiction.

This urgent interim measure may be sought by any disputing party prior to the constitution of the arbitral tribunal. While the court is a viable option to obtain an interim measure on an ex parte basis, the emergency arbitration procedure requires the party making this application to notify the other party, and the emergency arbitrator to hear arguments from both parties before making the decision due to the concern of due process. There are also concerns about the enforcement of such  a decision since practices vary from jurisdiction to jurisdiction. This makes emergency arbitration preferable compared to court in this respect.

Despite these concerns, emergency arbitration continues to gain more popularity and uses as more and more arbitration institutions incorporate this special procedure into their rules that reflect demand from users and greater harmony of practices. Emergency arbitration is also preferable to court because the disputing party could obtain instant interim relief while preserving the confidentiality of their dispute and could enforce it cross-border which a court order cannot do.

In conclusion, although emergency arbitration cannot satisfy everything the users may desire, however, it has done its job in solving the urgent issue that existed before the formal constitution of the arbitral tribunal. The more this special procedure is utilized, the greater certain it will be and more uniform practices among all jurisdictions.