THE AUTHOR:
Ayan K. De, International Disputes Counsel
Introduction
In arbitration, Emergency Arbitration (“EA”) occupies a unique position. Unsurprisingly, major institutional rules include provisions for EA. After parties engage in an EA, the subsequent step is to commence arbitration under the relevant institutional rules. Now, consider a case wherein a party benefit from an EA under one set of rules but commences arbitration under a different set of rules.
The issue arises as to whether this can be accomplished. This small area, although grey, is infrequently explored. This may be due to the absence of reported cases addressing it, or maybe it is too fundamental to warrant separate attention. The author refers to this scenario as the ‘twilight zone’- the interval between an EA and the commencement of arbitration- to argue in favour of shifting the rules.
Time Frames under Various Rules – EA and Commencement of Arbitration
Specific provisions are always made for EAs in institutional rules. Article 1 of Appendix II of the SCC Arbitration Institute Arbitration Rules (2023) (“SCC Rules”) provides that an application for the appointment of an Emergency Arbitrator may be made before arbitration proceedings are initiated or until the case is referred to the Arbitral Tribunal under Article 22 of the SCC Rules. It is thus possible to initiate emergency proceedings before or simultaneously with the filing of a Request for Arbitration (“RFA”) (See: J. Ragnwaldh et al, A Guide to SCC Arbitration Rules, 2019). Once an EA has been initiated, the time frame for arbitration commencement is determined by the period of validity of the EA order. Per Article 9(4)(iii) Appendix II of the SCC Rules, an emergency decision ceases to be binding if arbitration “is not commenced within 30 days from the date of the emergency decision.” Thus, in a situation wherein EA has been commenced before the RFA, the arbitration has to be ‘commenced’ within 30 days of the date of the decision.
Similar provisions, with differing periods, exist in other institutional rules. For example,Schedule 1 para 2(a) of the SIAC (Singapore International Arbitration Centre) Arbitration Rules (2025) (“SIAC Rules”), allows the filing of an EA before the Notice of Arbitration (“NOA”) but mandates that such notice be filed within 7 days from the date of receiving the EA application; failing which the EA shall be considered withdrawn. The ICC (International Chamber of Commerce) 2021 Arbitration Rules (“ICC Rules”) allow for the EA application ‘irrespective of whether the party making the application has already submitted its Request for Arbitration’ (see Article 29(1)) but the RFA has to be filed within 10 days of the receipt of the emergency application (see Article 1(6) of Appendix V, ICC Rules). A failure will result in a ‘termination of emergency arbitration’ proceeding unless the Emergency Arbitrator determines that a longer period is necessary( See also, The HKIAC (Hong Kong International Arbitration Centre) Administered Arbitration Rules (2024) (“HKIAC Rules”) (see Article 23.1 read with Schedule 4 (1) and 4(21)). The LCIA (London Court of International Arbitration) Arbitration Rules effective 2020 present a different framework that permits the appointment of an emergency arbitrator either at the time of filing the request or at any time before the formation of tribunal’ (see Article 9B and guidance note Section 8.2).
The question, therefore, is when and how the arbitration ‘commences’. Per Article 8 of the SCC rules,the arbitration ‘shall be deemed to commence on thedate the SCC receives the Request for Arbitration’. Similarly, Article 6.2 of the SIAC Rules contemplates that ‘the date on which notice (of arbitration) is received shall be deemed to be the date of commencement of arbitration’. The same provision also exists in the ICC Rules (Article 4(2)), the UNCITRAL Arbitration Rules (Article 3), the LCIA Rules (Article 1.4), and the HKIAC Rules (Article 4.2). Undoubtedly, ‘commencement’ is essential. A harmonious reading of the above rules reveals three key points:
- An EA can be commenced before the filing of the RFA / NOA;
- If the EA occurs before the RFA then the arbitration has to be ‘commenced’ within a certain period; and;
- ‘Commencement’ can only occur through the filing of a RFA/NOA.
‘Commencement’ of Arbitration – The Importance and Consequences of the Twilight Zone
The word ‘commencement’ has both procedural and substantive implications, apart from time limits. For example, once an arbitration has been started it may not be easy to stop it: the claimant may no longer be able to withdraw from the arbitration without the consent of the other parties involved (see Julian Lew, et al., Comparative International Commercial Arbitration,). The commencement brings the claims of each party to the attention of the other and puts the constitution of the arbitral tribunal in motion and “[a]n arbitration will generally be commenced by a request for arbitration…” (See Fouchard and Gaillard, International commercial arbitration); (see also Jan Paulsson and Georgios Petrochilos, UNCITRAL Arbitration).
Thus, ‘commencement’ is the starting point of arbitration with which the entire arbitration process is put into motion. While the rules make it clear that the arbitration is deemed to commence with the ‘receipt’ of the RFQ’ or receipt of the ‘NOA’. This formal notice is required to ‘start an arbitration’ (see Redfern and Hunter on International Arbitration).
If commencement marks the starting point of the arbitration and an RFA/NOA is the document that initiates the process, it follows that there can be no arbitration until the RFA/NOA is filed. It is sensible to say that submission to EA is not the commencement of arbitration. Therefore, a party that starts an EA but no longer wishes to pursue an RFA/NOA within the required period is in a penumbra. Alternatively, the initiation of EA under a set of institutional rules does not initiate arbitration, and there is nothing expressly or impliedly that binds a party to stick to the same set of rules (if EA is pre-RFA).
It is reasonable to state that submitting to EA does not initiate arbitration. Thus, a party that starts an EA but no longer wishes to pursue RFA/NOA within the required timeframe finds itself in a grey area.
‘Withdrawal’ Before and After the Commencement of Arbitration
A withdrawal made prior to commencement is on a different footing than a withdrawal made after commencement. For example, in its Decision on Jurisdiction and Liability, 4 August 2011, in Abaclat v. Argentina, the tribunal noted that “withdrawals” announced before the Notice of Registration of the RFA are unproblematic. Rule 8 of the ICSID Rules of Procedure for the Institution of Conciliation and Arbitration Proceedings (2006) (“ICSID Institution Rules”) allows a claimant to unilaterally withdraw its RFA before its registration. However, for “withdrawals” announced after the registration of an RFA, a claimant may not unilaterally withdraw its request for arbitration without the consent of the other party. The same has been followed in Ambiente v. Argentina, Decision on Jurisdiction and Admissibility, 8 February 2013.
The above cases were rendered in a scenario wherein arbitration had commenced (post-RFA). However, these cases provide a useful analogy indicating that a withdrawal pre-RFA does not represent an issue. In the absence of express rules or specific impediments, there is no reason a party (despite initiating an EA) cannot commence arbitration under a different set of rules.
Consequently, the period following an EA and preceding the filing of an RFA/NOA can be referred to as the ‘twilight zone’. This ‘twilight zone’ is more than an unclear field of law; it is a product of logical deduction regarding procedural timelines. The key argument is that after an EA and before filing the RFA/NOA, a party is not restricted from shifting from a particular institutional rule and commencing arbitration under another set of rules. In the absence of an RFA/NOA, there can be no question of ‘withdrawal’, as there is no arbitration to withdraw from.
The Procedural Fallout
While in theory the ‘Twilight Zone’ argument can be invoked to shift rules, it also calls for caution. As indicated above, institutional rules have prescribed periods within which an RFA/NOA must be submitted. However, it is interesting to note that while ICC, SIAC, and HKIAC rules calculate the period from the ‘date of receipt’ of the emergency application, SCC calculates it from the ‘date of the decision’ of the emergency arbitrator. Time prescribed under the ICC, SIAC, and HKIAC rules may not be sufficient for a party intending to shift and commence arbitration under a different set of rules. Simply because, by the time the emergency arbitrator gives its decision, the period will most likely have expired, resulting in a termination or withdrawal. In such circumstances, the SCC rules appear to be the most favourable option for an intending party, as they provide an adequate time frame to do so. A party may choose to shift from the institutional rule, under which EA has been availed, to another for a variety of reasons. These can include the costs of commencing arbitration or various strategic reasons, depending on the peculiarities of the case.
Apart from this, there can be other limitations as well. The Arbitration Agreement or the BIT may provide a submission to a particular institution that does not have an EA provision (e.g., ICSID or UNCITRAL), in which case, parties will be bound and will not be able to shift. Any digression to first invoke EA under a different institution, not provided for, then ‘commencing’ arbitration under the agreed institution will likely render the EA without jurisdiction. This will raise questions about the final and binding nature of the order passed and may impede its enforcement.
In the above situation, an emergency arbitrator may not even be appointed (see Appendix II, Article 4(2), SCC Rules). In most cases, the doctrine of Kompetenz–Kompetenz applies. Thus, an emergency arbitrator has the power to rule on its substantive jurisdiction and assess the admissibility of the application (see Cameroon Sim, Emergency Arbitration; see Appendix V, Article 6(2) of the ICC Rules. See also the International Center for Dispute Resolution (AAA-ICDR) International Dispute Resolution Procedures Including Mediation and Arbitration Rules (2021), Article 7(3)). Even though no test is set forth, a procedural hurdle can be raised by an objecting party by challenging the jurisdiction of an emergency arbitrator, thereby derailing the very nature of ‘urgent’ reliefs which the EA is designed to address.
Naturally, the twilight zone theory is likely to be restricted to those agreements or BITs that provide for a choice of multiple institutions. E.g., Algeria-Spain BIT (1994) or the Energy Charter Treaty (1994) (“ECT”).
Conclusion
Theoretically, a pre-RFA shift from one set of rules to another seems permissible. However, this theory has inherent limitations since the SCC rules are the only rules under which this proposition is valid. It is indeed an unexplored area, yet the logical deductions from the interpretation of rules point in this direction. The caveat is that, due to the lack of supporting authorities, some may regard it as an unclear area with limited applicability.
ABOUT THE AUTHOR
Ayan K. De, a King’s College London Alumnus, is an international disputes lawyer with 12 years of experience in commercial litigation, international commercial arbitration and investor state arbitration involving high-value cross-border disputes under major institutions such as ICSID, SCC, LCIA, ICC, and PCA and across the oil and gas, energy, construction and telecom sectors. He has previously worked with a tier-1 law firm in India and thereafter in two big international law firms in London in the field of international arbitration and public international law. Currently, he practices as an independent counsel.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
