The new Swiss Rules of International Arbitration (Swiss Rules") are in effect for all proceedings commenced after June 1, 2012. Article 43 of the revised Swiss Rules allows a party to seek interim measures before an emergency arbitrator prior to constitution of the tribunal.
Article 26 of the Swiss Rules empowers the arbitral tribunal to grant "any interim measures it deems necessary or appropriate." The new Article 43 goes further by authorizing an application for emergency relief before the arbitral tribunal is constituted. Parties also retain any right they may have to seek interim measures before a judicial authority.
The party seeking emergency interim relief under Article 43 must submit an Application setting forth a "statement of the interim measure(s) sought and the reasons therefor, in particular the reason for the purported urgency." The Application must be accompanied by comments on the language, seat of arbitration and governing law, as well as confirmation that the appropriate fees and deposits have been paid.
The Arbitration Court will appoint a sole emergency arbitrator "as soon as possible" unless there is manifestly no agreement to arbitrate or "it appears more appropriate to proceed with the constitution of the arbitral tribunal and refer the Application to it." A party intending to challenge an emergency arbitrator must send a notice of challenge to the Secretariat within three (3) days after the circumstances giving rise to the challenge became known to that party.
The emergency arbitrator is granted discretion to conduct emergency relief proceedings "in such a manner as the emergency arbitrator considers appropriate." The decision on the Application must be made within fifteen days. Article 43 provides that the emergency arbitrator "shall include a determination of costs" in the decision on the Application.
John Howley
New York, New York
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