Dominik Horodyski

Chair of Private Economic Law Faculty of Law and Administration Jagiellonian

University Krakow, Poland

Maria Kierska
Chair of Private Economic Law Faculty of Law and Administration Jagiellonian
University Krakow, Poland

Enforcement of emergency arbitrator’s

decisions – legal problems
and global trends
I. Introduction
In recent years there has been a significant increase in adoption of emergency arbi-
trator (hereinafter: ‘EA’) provisions into various arbitration rules 1. 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 ineffective 2. 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 request 3. 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 pro-
visions 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 constituted 4.
The 2015 International Arbitration Survey: Improvements and Innovations in Interna-
tional Arbitration completed by Queen Mary University London School of International

1 The EA Provisions were introduced into ICDR in 2006; SCC in 2010, SIAC in 2010, ICC in 2012, HKIAC

in 2013, JAMS in 2014 and into LCIA in 2014, after C. Caher, J. McMillan , Emergency Arbitration: The Default
Option for Pre-Arbitral Relief?, The International Comparative Legal Guide to: International Arbitration 2015,
12th Edition, 2015, London, p. 2; compare: R. Bose, I. Meredith, Emergency Arbitration Procedure: A Com-
parative Analysis, International Arbitration Law Review, Issue 5, 2012, p. 186.
2 C. Caher, J. McMillan, Emergency Arbitration:…, p. 1.
3 Ibidem, p. 1; I. Welser, Fast Track Proceedings, Expedited Procedure and Emergency Arbitrator – Pros

and Cons, [in:] B. Gessel-Kalinowska vel Kalisz (ed.), The Challenges and the Future of Commercial and In-
vestment Arbitration, Warsaw 2015, p. 223–224.
4 C. Caher, J. McMillan, Emergency Arbitration:…, p. 1.

Kwartalnik ADR • Nr 1(33)/2016 27

 Horodyski, Kierska

Arbitration, 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 inclu-
sion 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
available 5. 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 appoint-
ment of an emergency arbitrator, 30% have requested appointment 1–5 times, 3% filed
such request 5–10 times and 1% more than 10 times 6. 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 respondents 7. 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” (39%) 8.
The results of the Survey have therefore shown that the key aspect influencing EA ef-
fectiveness and popularity consists in enforceability of decisions rendered by emergency
arbitrators 9. This problem is however particularly difficult due to its complexity. First,
the number of EA applications and consequently EA decisions, which are then submitted
to a state court, is still too modest to draw firm conclusions as to their effectiveness. Sec-
ond, the wording and procedure of EA provisions is different in different rules, which does
not contribute to harmonized interpretation and may create doubts resulting in hindering
their enforceability 10. Third, the enforcement varies between jurisdictions. In certain ju-
risdictions enforcement is seen as time – consuming and unpredictable 11.
Taking above into consideration it is pertinent to point out at possible legal problems
that the courts might encounter while deciding the requests for granting enforcement
to EA decision. This analysis will be illustrated by recent state courts’ judgments issued
around the world, which found EA decisions effective and enforceable. The argumentation
of the courts might be vital to establish general trends and possible ways of approaching
to this problem by courts in other states.

5 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration,

available at: http://www.whitecase.com/sites/whitecase/files/files/download/publications/qmul-internation-

al-arbitration-survey-2015.pdf, p. 29.
6 Ibidem, p. 27.
7 Ibidem, p. 27.
8 Ibidem, p. 28.
9 Compare: R. Bose, I. Meredith, Emergency Arbitration…, pp. 187–188.
10 Ibidem, p. 188.
11 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration, p. 28.

28 Kwartalnik ADR • Nr 1(33)/2016

 Enforcement of emergency arbitrator’s decisions

II. Legal aspects of enforcement of EA decisions

1. Introduction
Where the parties fail to adhere to EA decisions voluntarily, the assistance of national
courts is necessary for the enforcement. Analysis of the EA decisions in the light of their
enforceability is crucial, since through evaluation of effectiveness it is possible to assess
whether this institution is a mere innovation or a vast improvement.
The international practice is diverse, and in fact it is going in different directions.
In order to see whether the potential for convergence lays on the horizon, the legal nature
of the EA decision shall be diagnosed. In that aspect, three elements require examination:
(i) the institution of an emergency arbitrator; (ii) form of the decision rendered by the EA;
(iii) finality of the decision rendered by the EA.

2. Institution of emergency arbitrator

When it comes to the role and nature of the EA’s mandate to issue interim relief, it is im-
portant to draw a road map to the EA through the Pre-Arbitral Referee, as an EA’s legal
ancestor. The ICC Pre-Arbitral Referee Rules were issued in 1990, allowing parties to apply
to a ‘referee’ for urgent provisional measures when difficulties arise in contractual rela-
tionships, prior to referral to arbitration 12. According to the rules, the measures ordered
by the referee are binding until decided otherwise by the referee or a court or an arbi-
tral tribunal. Moreover, application of the pre-arbitral referee procedure requires written
agreement between the parties, concluded either as part of the relevant contract or later.
The Rules refer to voluntary application of an order and while limiting the non-compli-
ance to liability for loss or damage, do not directly indicate the enforcement of the order 13.
Taking above into consideration, the main question remains the same and relates
to the means available for enforcing referee’s orders and whether such orders constitute
arbitral awards under the New York Convention. The answer was provided by the Paris
Court of Appeal in a highly commented case in 2003 14. The Paris Court of Appeal de-
clared inadmissibility of the appeal for annulment of the order of the pre-arbitral referee,
since it did not constitute an arbitral award. Interestingly, the Court pointed out that prior
to determining whether referee’s decision takes the form of an award or procedural order,
the matter should be viewed from the different angle. Mainly the referee’s mandate should
be scrutinized in order to establish whether the referee acts in the capacity of an arbitrator.
The Court noted that the binding effect of a referee’s order is rooted solely in the parties’
agreement hence shall not enjoy wider binding effect than any other contractual provision.

12 Rules for a Pre-arbitral Referee Procedure, available at http://www.iccwbo.org/products-and-services/

arbitration-and-adr/pre-arbitral-referee/rules-for-a-pre-arbitral-referee-procedure/.
13 Compare: art. 6.6. and 6.8.1. of the ICC Rules for a Pre-arbitral Referee Procedure.
14 Cour d’appel de Paris, 29 avril 2003, Société nationale des pétroles du Congo et République du Congo

v. Total Fina Elf E&P.

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 Horodyski, Kierska

The Court of Appeal concluded that the referee is not an arbitrator and his decisions were
not arbitral awards and they could not be subject to an action to set aside.
The main reservations raised towards such argumentation indicated that arbitration
is of contractual nature as well, but still leads to a jurisdictional decision. Therefore it
is rather a provisional nature of referee’s decision that might not meet the award’s at-
tribute of finality 15. On the grounds of such experience, in order to enhance the chances
of the enforcement of EA’s orders – the ICC rules on EA proceedings differ significantly
from those regarding the Pre-Arbitral Referee 16. First of all, the ICC provisions on EA
form an integral part of the arbitration rules. Secondly, they refer explicitly to ‘arbitra-
tors’, with a purpose to leave no doubts as to the jurisdictional nature of EA decisions.
Thirdly, their ties with arbitration proceedings are strengthened by the requirement
that the applicant files the request for arbitration within a short time limit 17. Moreover,
the sole fact that the EA does not render a final decision as to the merits of a dispute
cannot undermine his/her judicial function. In that aspect, for example the Swiss Rules
on International Arbitration state clearly that the EA decision shall have the same ef-
fects as an arbitral tribunal decision on interim measures 18. Finally, the EA shall comply
with the same minimal procedural guarantees applicable to any arbitral proceedings as
well as meet the requirements of impartiality and independence 19. Therefore, it might
be argued that the EA enjoys the same mandate to decide on parties’ request for interim
measures as an arbitral tribunal. The EA’s decisions should be then treated in the same
manner as awards issued by an arbitral tribunal.

3. Form of EA decision
When it comes to the form of the EA decision, it should be noted that this issue varies
in different arbitration rules (e.g. order in ICC Rules and Court of Arbitration at the Con-
federation of Lewiatan 20; order or award in HKIAC Rules; decision in SCC Rules). Since
the New York Convention applies only to the recognition and enforcement of foreign
arbitral awards and similarly state jurisdictions refer mostly to the enforcement of arbi-
tral tribunals’ awards, it is crucial to address this issue and determine whether the form
of the EA decision, matters for the purposes of enforcement.
Such considerations should lay in the background, since it is reasonable to expect that
the state courts would not be constrained by formalistic distinctions of the label applied

15 E. Gaillard, P. Pinsolle, The ICC Pre-Arbitral Referee: First Practical Experiences, Arbitration Interna-

tional, Vol. 20, No. 1, LCIA 2004, p. 21–22.

16 N. Vooser, Ch. Boog, ICC Emergency Arbitrator Proceedings: An Overview, ICC International Court

of Arbitration Bulletin, Vol. 22, Special Supplement 2011, p. 83.

17 A. Carlevaris, J.R. Feris, Running in the ICC Emergency Arbitrator Rules: The First Ten Cases, ICC

International Court of Arbitration Bulletin, Vol. 25, No. 1, 2014, p. 37.

18 Art. 43(8) of the Swiss Rules.
19 Ch. Boog, B. Stoffel, [in:] N. Voser (ed), 10 Years of Swiss Rules of International Arbitration, ASA Special

Series No. 44, p. 78; Compare: art. 43(4), (6) of Swiss Rules, art. 2, 3, 5 of ICC Arbitration Rules Appendix V.
20 The Court of Arbitration at the Confederation of Lewiatan is a Polish institution serving entrepreneurs

and resolution of commercial disputes; its rules are available at http://www.arbitrationcourt.org.pl/.

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 Enforcement of emergency arbitrator’s decisions

to the EA decisions 21. Irrespective of the nomenclature given to EA decision, most juris-

dictions recognize the principle of substance over the form, which means that the merit
of the decision should be taken into consideration over its name in different rules. There-
fore in deciding whether the decision on interim measures comes within the scope of New
York Convention, or the provisions of national law allowing for the enforcement of arbitral
awards, the content of the decision should prevail 22.
To illustrate abovementioned argumentation, the judgment of the Supreme Court
in Queensland is worth pointing out. In Resort Condominiums International Inc. v. Ray
Bolwell & Resort Condominius (Australasia) Pty. Ltd. 23, the sole arbitrator in order to en-
hance enforcement, labeled the decision on interim measure as “interim arbitration order
and award”. The Queensland Court pointed out that the sole indication of the decision,
as an “award” did not shape such a decision as an award in the meaning of the New York
Convention. In Court’s view the interim measure is of interlocutory and procedural na-
ture, thus in no way finally resolves parties’ legal rights. Moreover, the Court added that
such injunction is provisional, since it is liable to be rescinded, suspended, varied or re-
opened by the tribunal, which pronounced it. Accordingly, the award shall be both final
and binding in order to be enforceable under Article I (1) of the New York Convention.
Hence, the enforcement of an arbitral interim measure was denied, irrespective of the fact
that it was taken in the form of an award.
Therefore, when the enforceability of the EA decision is concerned, the form of the de-
cision is of secondary importance. The sole fact that EA has granted the decision on
interim measures in the frames of the award would not increase the chances of enforce-
ment. Hence, especially when the recourse to the New York Convention is needed in order
to obtain enforceability clause, the issue of finality of such decision prevails.

4. Finality of EA decision
Some national laws consider that while the interim measure is only temporary, it is,
however, final as a matter of law for the purposes of enforcement 24. This is an approach
presented mainly by the US courts.
For instance the US District Court in Sperry International Trade v. Government of Is-
rael 25, found an arbitral interim order final and as a consequence, enforceable under

21 M. Dunmore, The Use of Emergency Arbitration Provisions, Global Arbitration News, 10/08/2015,

available at: http://globalarbitrationnews.com/use-emergency-arbitration-provisions/; Compare i.a. the US

judgment from the 7th Circuit Court of Appeals in case of Publicis Communications v. True North Commu-
nications, 206 F.3d 725, 729 (7th Cir. 2000).
22 Ch. Boog, B. Stoffel, 10 Years…, p. 81.
23 Supreme Court of Queensland, 29/10/1993, reported in Yearbook Commercial Arbitration vol. XX

– 1995, p. 628–650; A. Yesilirmak, Provisional Measures in International Commercial Arbitration, Kluwer

Law International 2005, p. 260–261.
24 The Practice and Standards Committee of Chartered Institute of Arbitrators, International Arbitration

Practice Guide – Applications for Interim Measures, commentary on Article 3, paragraph 2, 2015, p. 11 as well
as list of US judgments cited in it (endnote 22).
25 532 F. Supp. 901 (S.D.N.Y. 1982).

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 Horodyski, Kierska

the New York Convention. The Court took a pragmatic view by stressing that the award
was severable from the merits and deserved an affirmative action, since unless confirmed
and enforced, the award will be a meaningless and frustrated exercise of the arbitrators’
powers 26. This was followed in Southern Seas Navigation Ltd. of Monrovia v. Petroleos
Mexicanos of Mexico City 27. The interim ruling was found enforceable as a final award.
The Court noted that such an award is an end in itself, because its very purpose is to clarify
the parties’ rights in the ‘interim’ period pending a final decision on the merits.
Such an approach and rationale towards enforcement of interim measures granted
by arbitral tribunal was later implemented in the field of EA decisions, with the best-
known cases being Yahoo! Inc. v. Microsoft Corp. 28 and Blue Cross Blue Shield of Michigan
v. Medimpact Healthcare Systems 29. In both cases courts underlined that the decision
of EA was final and determinative on the issue of enforceability of the contract during
the pendency of the arbitration, hence it was entitled to enforcement.
Interesting and thorough analysis was provided by the Singapore Court of Appeal
in the recent case PT Perusahaan Gas Negara (Persero) TBK v. CRW Joint Operation 30,
where the issue of enforceability of arbitral tribunal’s interim award was considered.
In the broader horizon, the Court’s decision is of paramount importance in the field
of multi-tier dispute resolution clauses implemented in the contract (i.a. in FIDIC con-
tracts), where the decision of the first decision-making body (in the above mentioned case
– Dispute Adjudication Board) is contractually binding upon the parties and thus directly
enforceable, but might be subject to challenge in the arbitral proceedings. The Court
distinguished three types of awards made prior to the final disposition of all the issues
in an arbitration: (i) a partial award, which finally disposes of a part but not all claims
brought by the parties; (ii) an interim award, which finally decides a preliminary issue,
relevant to the disposition of that claim, such as choice of law, liability, interpretation
of a particular provision; (iii) and a provisional award, which aim is to protect the party
from damage during the pendency of the arbitration, like the preservation of assets or
evidence, but does not finally dispose of either a preliminary issue or a claim. Following
that, the Court pointed that the ‘final’ award can be defined as: (i) an award of preclu-
sive effect; (ii) an award that achieves a sufficient degree of finality in the arbitral seat;
(iii) or otherwise disposes of all remaining claims in an arbitral proceedings 31. The Court

26 Ibidem, 909.
27 606 F. Supp. 692 (S.D.N.Y. 1985), excerpts cited by D.F. Donovan, [in:] A. van den Berg (ed), Internation-

al Commercial Arbitration: Important Contemporary Questions, ICC Congress Series No. 11, Kluwer Law
International 2003, p. 142.
28 983 F. Supp. 2d 310 (S.D.N.Y. 2013).
29 2010 WL 2595340 (E.D. Mich. June 24, 2010).
30 [2015] SGCA 30, 27/05/2015.
31 E. Tan, R. Coldwell, Clyde & Co LLP, Another (Unsuccessful) Challenge to the Finality of Interim Arbitral Awards

in Singapore and Enforcing DAB Decisions on International Projects under FIDIC, Kluwer Arbitration Blog, 15/06/2015,
available at http://kluwerarbitrationblog.com/2015/06/15/another-unsuccessful-challenge-to-the-finality-of-inter-
im-arbitral-awards-in-singapore-and-eforcing-dab-decisions-on-international-projects-under-fidic/; L. Sun Chan,
J. Fong, Singapore Court of Appeal affirms the principal of temporary finality in construction arbitrations, GlobalAr-
bitrationNews Platform moderated by Baker & McKenzie, 30/06/2015, available at http://globalarbitrationnews.com/
singapore-court-of-appeal-affirms-the-principal-of-temporary-finality-in-construction-arbitrations-20150619/.

32 Kwartalnik ADR • Nr 1(33)/2016

 Enforcement of emergency arbitrator’s decisions

held that the interim award was final and binding with regards to the particular issue,
which the award encompassed, namely the contractual obligation to give a prompt effect
to Dispute Adjudication Board decision. Further the Court explained that granting the en-
forcement does not preclude parties from either commencing the arbitration proceedings
as to the merits of the case or filing a counterclaim to challenge the merits of the DAB
decision. However, such actions are different from verifying the interim award as such.
Overall, the Court’s approach towards enforceability of different types of arbitral tribu-
nals’ decisions goes beyond their terminology and nomenclature by focusing on their
respective characteristics.
Nevertheless, such a far-reaching approach towards the final nature of decisions on
interim measures remains highly controversial. Recently the Swiss Federal Tribunal de-
clined the arbitral decision on interim measures the feature of ‘award’, since, according
to the Swiss Federal Tribunal, it did not finally determine any of the matters in dispute
between the parties 32.

III. Global trends of enforcement of EA decisions

1. Introduction
The examination of EA’s legal nature leads to the analysis of possible ways of enforcing
the EA decision before national courts. As it has already been pointed out global trends are
still under construction due to modest volume of EA applications. Nevertheless, there are
some interesting instances of successful enforcement of EA decisions in the USA, Hong
Kong, Singapore and Ukraine, which may pave the way for further practice in seeking
enforcement of interim measure issued by EA.
There seem to be three legal paths leading towards the enforcement of EA decisions:
(i) national law clearly provides for the enforcement of EA decisions; (ii) enforcement
under the New York Convention; (iii) by using the existing in national laws regime for
recognition and enforcement of interim measures granted by arbitral tribunals to EA
decisions by analogy.

2. Enforcement provided in national law

This approach was implemented in Singapore’s and Hong Kong’s legislation. Singa-
pore’s International Arbitration Act was amended in 2012 by broadening the definition
of ‘arbitral tribunal’ in Section 2(1) to include an ‘emergency arbitrator appointed pur-
suant to the rules of arbitration agreed to or adopted by the parties including the rules
of arbitration of an institution or organization’. As a result, the meaning of ‘award’, also
defined in Section 2(1) as a ‘decision of the arbitral tribunal on the substance of the dis-
pute and includes any interim, interlocutory or partial award’, extends to the decisions
rendered by EA. Following that trend, Hong Kong’s Arbitration Ordinance was amended

32 Case No DFT 136 III 200, 13/04/2010.

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 Horodyski, Kierska

in 2013 by directly stipulating in Section 22B(1) that ‘any emergency relief granted,
whether in or outside Hong Kong, by an emergency arbitrator under the relevant arbi-
tration rules is enforceable in the same manner as an order or direction of the Court that
has the same effect, but only with the leave of the Court’. However, it should be noted
that under Section 22B(2) the Court’s leave to enforce emergency relief granted overseas
is limited to a specific types of reliefs.

3. Enforcement under the New York Convention

The second approach is likely to establish a permanent presence in US. Especially given
that enforcement of interim measures granted by arbitral tribunal on the basis of New
York Convention provides a solid foundation for it. There are also a few instances of US
courts recognizing EA decisions as final awards and thus enforceable under the New
York Convention (see abovementioned Yahoo! Inc. v. Microsoft Corp. and Blue Cross Blue
Shield of Michigan v. MedImpact Healthcare Systems). As it has been already signalized
the basic problem with enforcement pursuant to New York Convention is establishment
of the prerequisite of finality of the award issued by arbitral tribunal when deciding upon
interim measures and respectively of the decision rendered by EA.
Interestingly, recent voice in this discussion has been taken by national court
in Ukraine 33, which upheld an application lodged by JKX Oil & Gas plc, Poltava Gas B.V.
and JV Poltava Petroleum Company to enforce an EA decision, rendered under the SCC
Rules against Ukraine. The Pecherski District Court in Kyiv treated the EA decision no
different than any other foreign arbitral award, since the grounds for its enforcement were
found in the New York Convention. However, the Court did not take into consideration
that according to Art. 8 Appendix II of SCC Rules the EA decision on interim measures
takes the form of a decision, not an award. Moreover, there was no explanation as to the fi-
nal nature of such decision, what is controversial, since under Art. 9 Appendix II of SCC
Rules decision is binding on the parties but not only might it be amended or revoked
by the EA upon a reasoned request by a party, but also it ceases to be binding in enumer-
ated instances. Nevertheless, the meaning of the Court’s judgment is essential for two
reasons. First of all, not only is this the first known enforcement of EA decision against
the state, but also it should be noted that the enforcement has been obtained in the same
state 34. Secondly, the judgment might be of precedential implication, while being the first
attempt to recognize and enforce an arbitral award issued by EA in Ukraine 35. It should
be noted that the Ukrainian Court of Appeal overturned the ruling of the first instance

33 Case No 757/5777/15, 8/06/2015, the Court of Appeal ruling was granted on 17/09/2015.
34 C. Tevendale, Ch. Leathely, V. Naish, Herbert Smith Freehills LLP, First enforcement of an emergency
arbitrator award against a state in investment treaty case, Lexology, 2/07/2015, available at http://www.lexology.
.com/library/detail.aspx?g=577a2ad5-4020-414c-87c2-9de4d93763f4.
35 D. Galagan, Enforcement of the JKX Oil & Gas Emergency Arbitrator Award: A Sign of Pro-arbitration

Stance in Ukraine?, Kluwer Arbitration Blog, 27/07/2015. Details and description of the case, together with
parties argumentation, might be found there as well, available at http://kluwerarbitrationblog.com/2015/07/27/
/enforcement-of-the-jkx-oil-gas-emergency-arbitrator-award-a-sign-of-pro-arbitration-stance-in-ukraine/.

34 Kwartalnik ADR • Nr 1(33)/2016

 Enforcement of emergency arbitrator’s decisions

and refused enforcement on the public policy grounds 36. Nevertheless, the Court of Ap-
peal’s judgment did not impair the enforceability of EA decisions on interim measures
under the New York Convention.

4. Enforcement by analogy
This continuing ambiguity leads to the analysis of the third possible path towards
the enforcement of EA decisions, namely by referring by analogy to already existing
regime (in national legal systems) for recognition and enforcement of interim measures
granted by arbitral tribunals.
The problem that arises is whether the analogy can be employed to enforce decisions
(orders, awards) issued by EA by reference to enforcement of interim measured issued
by arbitral tribunal. On institutional level EA differs significantly from arbitral tribunal.
Not only is EA appointed by institutional body and not by parties themselves, but also it
is appointed even before filing a request for arbitration on the pre – arbitral stage. It might
have far reaching consequences for example in situations when a party questions the va-
lidity of arbitration clause or its applicability to certain claims. It might also be argued
that EA decisions lack legitimacy and EA lack authority to issue interim measures that
might be further subject to enforcement on the same basis as awards on interim measures
issued by arbitral tribunal, especially when parties have consented to arbitration rules
before adoption of EA provisions 37.
Many state jurisdictions, like i.a. Switzerland, England, Germany, Poland, permit free
access to the courts promptly to enforce interim measures issued by arbitral tribunal,
recognizing that if interim measures are to fit for purpose, they should be enforceable
at the time they are granted 38. The regulation however is restricted only to the decisions
rendered by arbitral tribunals 39.
Moreover, jurisdictions that are based on UNICTRAL Model Law (amended
in 2006) 40, such as Australia and New Zealand, allow for the enforcement of interim
relief granted by arbitral tribunals but do not provide expressly for the enforcement
of EA decisions. Art. 17H and 17I of the Model Law require the court to enforce such
measures issued by arbitral tribunals, irrespective of the seat of arbitration. Decisions on
interim measures are different than final awards in that the interim measures could be

36 Under the EA interim decision Ukraine was ordered to stop imposing royalties on one of JKX’s subsi­

diaries – Poltava Petroleum’s gas production over a set percentage. The Court of Appeal found such decision
as a factual competence to alter tax rates and thus constituting both the violation of the Tax Code of Ukraine
and breach of the fundamental and determinative principles of taxation established in Ukraine.
37 Compare: I. Welser, Fast…, p. 221.
38 D. F. Donovan, [in:] International Commercial…, p. 143.
39 Compare for example the Art. 1181 § 3 of Polish Code of Civil Procedure which states: A decision

of the arbitration court to apply an interim security measure shall be enforced after the court has issued a writ
of execution for that decision.
40 The original version of the UNCITRAL Model Law (1985) in Art. 17 gave the arbitral tribunal the com-

petence to order interim measures, however it was silent as to the recognition or enforcement of interim relief
by the courts.

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 Horodyski, Kierska

granted ex parte, might be altered, revised, modified, hence the Model Law regulation
has been designed to account for these features 41.
Another example would be Germany, which took an approach called ‘exequatur
model’, since it requires the transposition of the arbitral tribunal’s measure into the meas-
ure that could have been issued by a court and will be treated accordingly by the national
court system 42. Art. 1041 (2) and (3) of the German Code of Civil Procedure provides
that upon parties petition the court may permit the enforcement of a measure, unless
a cor­responding measure of temporary relief has already been petitioned with a court.
It may issue a differently worded order if this is required for the enforcement of the meas-
ure. Upon application, the court may also reverse or modify the order. The drawback
of such model is that by allowing the court to recast the measure ordered by arbitral
tribunal (in order to make it enforceable), it also allows state courts to review the sub-
stance of the interim relief 43. Nevertheless, without such a provision, interim relief ordered
by the arbitral tribunal might simply remain unenforceable due to the lack of correspond-
ing procedures of coercive application. German model of enforcement of arbitral tribunal
decisions on interim measures is worth considering, since it goes a step further by focusing
on enforceability through the lenses of state’s coercive procedures. If applied by analogy
to EA decisions, it might provide a greater security for the applicant.
Different approaches towards enforcement of the interim measures ordered by ar-
bitral tribunals, that have been developed in national legislations (as described above)
are worth mentioning, since they provide a potential frameworks for the enforcement
of EA orders. There are vital arguments that stand for convergence as to enforcement
of both arbitral tribunal and EA decisions on interim measures. As it has already been
pointed out, the form as well as the finality of EA decisions are analogous to the interim
measures issued by arbitral tribunals. In addition they share the same effect, which is se-
curing the interests of party seeking urgent and effective interim relief, but on different
arbitral stages. Therefore, even though the decisions of EA cannot be treated simply as
the interim measures rendered by arbitral tribunal, they might by treaded analogically
because the conditions in which they are issued and the aim they serve, are parallel to or-
ders issued by arbitral tribunals 44.
Moreover, the recourse to analogy in treating EA decision in the same manner as ar-
bitral tribunals’ decisions, furnishes the national courts with a legal mechanism allowing

41 E.g. Art. 17H (2) of the UNCITRAL Model Law as revised in 2006 provides that the party who is seeking

or has obtained enforcement of an interim measure shall inform the court of any termination, suspension
or modification of that measure. Art. 17I (1)(a) provides that the enforcement of an interim measure may be
refused if the arbitral tribunal’s decision with respect to the provision of security in connection with the in-
terim measure issued by the arbitral tribunal has not been complied with or if the interim measure has been
terminated or suspended by the arbitral tribunal. Art. 17I (1)(b)(i) provides that the enforcement might be
refused, if the court finds that the interim measure is incompatible with the powers conferred upon the court.
However the court might decide to reformulate the measure to the extent necessary to adapt it to its own pow-
ers and enforcement procedures. Compare UNCITRAL Working Group document A/CN.9/WG.II/WP.138,
p. 14–16; UNCITRAL Working Group document A/CN.9/589, p. 16–20.
42 A. Yesilirmak, Provisional Measures…, p. 255.
43 Ibidem, p. 255.
44 Compare: M. Asłanowicz, Arbiter doraźny, Przegląd Ustawodawstwa Gospodarczego, No 8/2013, p. 18–22.

36 Kwartalnik ADR • Nr 1(33)/2016

 Enforcement of emergency arbitrator’s decisions

them to comply with the parties’ intent, without referring to New York Convention. In this
regard, the dualism of possibilities of analogy might be observed. First possibility, de-
scribed in chapter 3.c., refers to New York Convention as a legal basis for enforcement.
This possibility draws analogy on the line: (i) final award of arbitral tribunal as to the mer-
its of the case and (ii) final character of the EA decision as to interim measures. Hence,
it is the prerequisite of finality of the order that is a subject to analogy. Whereas, the sec-
ond possibility, presented in this chapter, draws the analogy between: (i) arbitral tribu-
nal decision as to interim measures and (ii) EA decision as to interim measures. There-
fore, the analogy is made on the grounds of similarity of the bodies that issue decision
and the similarity of the decision itself 45.

IV. Conclusions
Given the fact that EA provisions are in their infancy, at this stage it is too soon to pre-
dict whether a consensus will emerge as to the effect of EA decisions. It is also impossible
to anticipate which of the paths leading towards the enforcement of EA decisions will
prevail. Some commentators portend a good prognosis of courts in different jurisdictions
to follow the practical path set out by US practice, considering that courts might ignore
the conceptual difficulties about finality in order to facilitate an EA procedure to which
parties have agreed as part of their chosen arbitral rules 46. Nevertheless, the result-ori-
ented approach is not free from criticism. By taking the position that orders on interim
measures cannot be subject to New York Convention, the critique names the pro-enforce-
ment efforts a ‘creative stretching’ of New York Convention 47.
There is a common approval from the arbitration community as to the introduction
of EA provisions 48. Recent report conducted by International Bar Association, titled:
The Current State and Future of International Arbitration: Regional Perspective, completed
in September 2015, shows that in countries where regulation as to direct enforcement
of EA decisions has been introduced, such as in Singapore or Hong Kong, the opinions
about the future of EA are optimistic 49. While in Europe and North America Region
the opinions about EA are mixed mainly due to modest volume of applications for EA

45 Compare: Ch. Caher, J. McMillan, Emergency Arbitration:…, p. 2–3.

46 Ibidem, p. 2; A. Yesilirmak, Provisional Measures…, p. 265, Author claims that US approach should
be taken into account, because it is in line with the overall object of the New York Convention – enhancing
effectiveness of arbitration. However it should be noted that applicability of EA procedure might be ques-
tioned on the grounds of parties’ intent in the moment of agreeing to certain arbitration rules, which in this
moment have not contained EA provisions. It might be then argued that the parties in fact did not agree to EA
provisions since this regulation has been introduced after concluding arbitration clause and hence it should
require subsequent agreement.
47 P.J.W. Sherwin, D.C. Rennie, Interim relief under international arbitration rules and guidelines: a com-

parative analysis, The American Review of International Arbitration, 2010/3, p. 326–327 and the commentators
cited there.
48 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration,

p. 28–29.
49 The Current State and Future of International Arbitration: Regional Perspective, available at http://www.

.ibanet.org/LPD/Dispute_Resolution_Section/Arbitration/Publications.aspx, p. 16.

Kwartalnik ADR • Nr 1(33)/2016 37

 Horodyski, Kierska

proceedings, as well as concerns about the enforcement 50. As a matter of fact, the Report
shows that one of the most pertinent problems pointed out by stakeholders concerns
the enforcement of emergency arbitrator decisions 51.
Nowadays the EA provisions are here to stay and are mainly considered to be a cru-
cial instrument responding to business needs of parties involved in arbitration, espe-
cially in cases where seeking interim relief before national courts may be inadequate or
ineffective.
In this context the trend to minimalize the role of state courts in granting interim
relief in international arbitration might be expected, even on pre-arbitral stage, supported
by the strong pressure exercised on national courts to recognize and enforce EA decisions,
in order to grant parties sufficient protection and meet their business expectations.
In spite of described challenges, the introduction of EA provisions and the enforce­
ability of EA’s decisions, might be seen also as another step towards bringing state judicial
mechanisms into private method of settling disputes, which, on one hand, provides higher
level of protection for parties, but on the other side – aims at judicialization and institu-
tionalization of the arbitration procedure (the EA is appointed by the arbitration insti-
tution and not by the parties). Hence, apart from obvious benefits, it may also adversely
affect some of the inherent traits of commercial arbitration such as simplicity and quick-
ness, comparing to state court’s proceedings.

Summary
This paper elaborates on one of the most recent innovations in international arbitration
the introduction of emergency arbitrator provisions. In spite of many problems that are
associated with this new regulation, the issue of enforcement of the emergency arbitrator
decision appears to be the most important. This paper deals with this aspect by presenting
legal difficulties as to finding EA decisions enforceable by the state court as well as the ex-
isting worldwide trends resulting from courts’ judgments around the world presented as the
newest examples that could mark the path for further practice.

Keywords
commercial arbitration – emergency arbitrator – enforcement of awards

50 Ibidem, p. 16–17.
51 Ibidem, p. 38.

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