November 10 2011
On September 12 2011 the International Chamber of Commerce (ICC) amended its Arbitration Rules. The new rules will be effective from January 1 2012. They establish that a party which requires urgent interim or conservatory measures may apply for the appointment of an emergency arbitrator before the arbitral tribunal is constituted. These amendments follow the trend of other arbitration rules, such as the arbitration rules of the Stockholm Chamber of Commerce and the American Arbitration Association, which already include emergency arbitration procedures. Similarly, the main Mexican arbitration institutions have already incorporated such measures into their rules. This update considers the provisions of the Mexican Arbitration Centre and the Mediation and Commercial Arbitration Commission of the Mexico City National Chamber of Commerce (CANACO).
Since 2008 the CANACO Arbitration Rules have set forth provisions for the application of emergency interim measures. According to Article 50 of the rules, a party that seeks an interim measure of protection must address its request before the tribunal is constituted. CANACO's Permanent Commission of Arbitration must appoint a single interim arbitrator from a special list of interim arbitrators who are authorised to rule on applications for interim protection measures.
The rules empower the interim arbitrator to order any interim protection measure or issue any preliminary order that he or she deems necessary, including injunctive relief and measures for the protection or conservation of title. Such a measure may take the form of an interim award or an order. The interim arbitrator may sit as a member of the arbitral tribunal if the parties so agree.
The enforcement of an interim award or protection measure may be made conditional on a grant of appropriate security from the party that seeks the award or other measure.
Attorney's fees and expenses associated with applications for interim measures must be initially apportioned by the interim arbitrator, subject to the power of the arbitral tribunal to determine the final apportionment of such costs. Interim fees must be determined by the Permanent Commission of Arbitration.
The Mexican Arbitration Centre Rules have included provisions regarding emergency interim measures since 2009. Pursuant to Article 30(2) of the rules, a party which requires an urgent conservatory or interim measure before the arbitral tribunal has been constituted must apply to the secretary general in writing once the arbitral proceedings begin.
The General Council must appoint an emergency arbitrator as soon as possible. He or she may decide the case solely on the basis of the written submissions and documentary information filed by the parties, unless one of the parties asks for a hearing. The emergency arbitrator may order a full range of conservatory or interim measures, including prohibitions and measures for the protection or conservation of rights.
An emergency arbitrator or an arbitral tribunal may modify or suspend an urgent measure at the request of any of the parties; in exceptional circumstances, it may also suspend a measure on its own initiative.
The emergency arbitrator may not sit as a member of the arbitral tribunal or as a sole arbitrator unless the parties agree otherwise.
Urgent measures may be granted on condition that the party which requests the measure provides the security set by the emergency arbitrator.
The emergency arbitrator's fees and expenses and the institution's administrative expenses will be determined according to Paragraph 7 of Article 30(2) of the rules.
The amended ICC Arbitration Rules finally measure up to international practice in jurisdictions such as Mexico, where the arbitration rules of the main local arbitral institutions had already included provisions for appointing emergency arbitrators and seeking interim relief.
The provisions regarding the establishment of emergency arbitrators in the ICC Arbitration Rules and the rules set by CANACO and the Mexican Arbitration Centre are not identical. However, their purpose is the same: to provide parties with a prompt solution in a situation that requires the application of a measure before an arbitral tribunal can be constituted.
For further information on this topic please contact Luis Alberto Aziz Checa or Rebeca Sanchez Perez at SAI Law & Economics by telephone (+52 55 59 85 6618), fax (+52 55 59 85 6628) or email (firstname.lastname@example.org or email@example.com).
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Luis Alberto Aziz Checa