KIAC_Conference Report_Print

KIAC 2014 International
Arbitration Conference
Emerging issues in international arbitration:
WHAT A NEW ARBITRAL SEAT CAN ANTICIPATE
REPORT

Edited by Kigali International Arbitration Centre
This document is comprised of papers and events
of the KIAC 2014 conference as they unfolded,
which was held in Kigali - Rwanda, 25th - 27th
May, 2014

The Kigali International Arbitration Conference 2014
was hosted by Kigali International Arbitration Centre,
with support from the following organisations:

KIAC 2014 CONFERENCE
REPORT
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Foreword iii
KIAC International Arbitration Conference Program 1
Welcome & networking reception 2
Introductory speech: 4
Opening & Key note 7
PANEL ONE 10
Emergency arbitration: 10
PANEL TWO 41
Multi-party arbitration in practice 41
PANEL THREE 59
Dealing with guerilla tactics in international arbitration 59
PANEL FOUR 98
How arbitral tribunal award damages in construction
disputes 98
Deliberations 113
PANEL FIVE 116
Third-party funding in arbitration: 116
Deliberations 129
PANEL SIX 133
Appointing the arbitrator in practice 133
Discussions 151
Tableof contents

ii |
KIGALI INTERNATIONAL ARBITRATION CENTRE
PANEL SEVEN 157
The Arbitral Award and the Dissenting Opinion 157
Discussion 184
PANEL EIGHT 186
Inﬂuence of Legal Systems in International Arbitration: 186
CLOSING CEREMONY 202
CLOSING SPEECH 204
THE CHAIRMAN KIAC BOARD OF DIRECTORS 204
SPEAKERS’ BIOGRAPHY 205

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Foreword
From May 25th to 27th, 2014, over 150 arbitration professionals
from 18 countries around the world convened in Kigali, Rwanda to
discuss emerging issues in international arbitration and what a new
arbitral seat like KIAC can anticipate
The three-day conference was organised by Kigali International
Arbitration Centre (KIAC) as part of Rwanda’s efforts to promote
and contribute to international arbitration. The conference brought
together senior government officials, arbitrators, members of the
private sector and other major stakeholders .
During the conference, officials highlighted the importance
of arbitration and other ADR Solutions like mediation and
adjudication.
The conference was part of KIAC’s continuous efforts to
institutionalize knowledge sharing, exchange of experiences
and building partnership and cooperation in International among
professionals. It is part of KIAC’s journey towards becoming a
regional choice for commercial dispute resolution.
During the conference, participants explored, among other
things; Issues around emergency arbitrator: theory and practice;
multi-party arbitration in practice; Dealing with guerrilla tactics in
international arbitration: which tools for counsels and arbitrators;
Influence of legal systems in international arbitration: practical
issues; Third party funding in arbitration: ethics and regulatory
issues; Appointing the arbitrator in practice: the arbitral awards
and the dissenting opinion; and How arbitral tribunal awards
damages in construction disputes. The conference also provided
an opportunity for participants to network with fellow practitioners
worldwide as a way to foster integration and inclusion for new
entrants in international arbitration.

iv |
KIAC takes this opportunity to thank all participants who travelled
from diﬀerent parts of the world to be part of the conference.
Our sincere gratitude to the entire KIAC team that was involved
in planning and preparation of the conference, without whom, it
would not have made this conference a massive success.
Special thanks to the Chief Justice of Rwanda, Prof. Sam Rugege
who was our guest of honour. His great advice contributed a lot to
in building institutional arbitration in Rwanda. We would also like to
thank all speakers for their contribution.
Finally a note of thanks to our funders Investment Climate Facility
for Africa (ICF), Government of Rwanda (GoR), Private Sector
Federation (PSF) and our sponsors; The Law Society of England
and Wales, International Council for Commercial Arbitration
(ICCA), Fountain Advocates, Swiss Arbitration Academy, Trust
Law Chambers, K-Solutions & Partners and ALN.

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KIAC International Arbitration
Conference Program
SUNDAY 25TH MAY 2014
Welcome & Networking Reception
MONDAY 26TH MAY 2014
• Registration
• Opening & key note speech
• Coffee break
• Emergency arbitration: theory and practice
• Discussion
• Multi-party arbitration in practice
• Discussion
• Lunch
• Dealing with guerilla tactics in international arbitration: which
tools for counsels and arbitrators?
• Discussion
• How arbitral tribunal award damages in construction disputes?
• Discussion
• End of the first day
• Dinner
TUESDAY 27TH MAY 2014
• Third-party funding in arbitration: ethics and regulatory issues
• Discussion
• Appointing the arbitrator in practice:
• Discussion
• Coffee break
• The arbitral award and the dissenting opinion
• Discussion
• Influence of legal systems in international arbitration: practical
issues
• Discussion
• Conclusion
• Lunch
END OF THE CONFERENCE

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WELCOME & NETWORKING
RECEPTION
MR BENJAMIN GASAMAGERA,
CHAIRMAN, BOARD OF DIRECTORS, PRIVATE SECTOR FEDERATION
Chairman Kigali International Arbitration Centre, Secretary General
KIAC, PSF Board members present, KIAC team; Dear delegates,
ladies and gentlemen;
On behalf of the Private Sector Federation of Rwanda, I feel
honoured to welcome you to Rwanda and in particular to the Kigali
International Arbitration Conference 2014. I know most of you have
travelled from far and beyond great waters, but I am happy that
you have finally arrived safely. And so, we are very happy to receive
you tonight.
The current globalization of our economies presupposes the free
movement of goods, services and persons which leads to increase
in cross -border transactions; inevitably whether we like it or not,
cross-border disputes are likely to be some of the challenges on the
increase. It is for this reason that the Rwanda Private Sector opted
to invest in establishing Kigali International Arbitration Centre to
preside over commercial disputes Resolution.
Kigali International Arbitration Centre is still a young Institution but
a dynamic one, in a sense that it has managed to bring all of us
together here in Rwanda from across different Continents of this
World.
Ladies and gentlemen, you are professionals in your own field
of International Arbitration but nevertheless, members of the
Worldwide Community of professionals which means that we are
in the same family.

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It is now the time to know each other and feel free to interact and
network. Feel at home. In Kinyarwanda we say, Murakaza Neza!
I now request you all to raise up your glasses so that we can
toast to our health. Thank you very much, and I wish you fruitful
deliberations during the conference.

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INTRODUCTORY SPEECH:
BERNADETTE UWICYEZA,
SECRETARY GENERAL, KIAC, RWANDA
Our Guest of Honour, The Chief Justice of the Republic of Rwanda;
Your Lordship Prof. Sam Rugege; The Chairman Board of Directors,
Kigali International Arbitration Centre; Mr. Faustin Mbundu,
Distinguished delegates, Ladies and Gentlemen:
It is my honour to welcome you all to the KIAC International
Arbitration Conference 2014. Allow me to thank you more sincerely
for having honoured our invitation. I am particularly grateful to the
Chief Justice of Rwanda for having accepted to grace this occasion
as our Guest of Honour; henceforth, I take this opportunity to
recognize and appreciate the overall support of Rwanda’s Judiciary
towards the process of promoting Arbitration practice in Rwanda.
To this end, I thank you very much.
Ladies and gentleman, Kigali International Arbitration Centre
was established in 2011, as part of Rwanda’s continuous efforts to
improve Business environment and investment Climate. This is a
joint project between the government of Rwanda and the Private
Sector Federation, an association federating all professionals in
different fields of private sector’s business activities in Rwanda.
Nevertheless KIAC is an independent Body whose purpose is to
provide infrastructure for quality services in arbitration and to
create an enabling environment for the promotion of the use of
arbitration practice and other friendly ways of disputes resolution
in Rwanda.
From its inception, KIAC management focused on setting basic
standardsofqualityservicesforarbitration.Theseincludeamodern

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set of arbitration Rules matching with international standards and
accreditation of local professionals at the minimum requirements
level. Since then, over 300 professionals from different fields have
so far attended arbitration courses run by the Chartered institute
of Arbitrators and leading to various level of accreditation. With
the cooperation of the Judiciary, judges were enrolled in the same
program to ensure that all legal professionals have a common
understanding of the concept and practice of arbitration.
The second focus was on educating the public and potential users
in matters related to arbitration. This was done through awareness
campaigns, engaging various professional associations in different
workshop sessions on the concept and practice of arbitration.
Here our aim is to promote a culture of arbitration in addition to
our home grown solutions in matters of alternative justice; such as
Gacaca court system, and our local Mediation committees.
Our third focus was on creating platforms for knowledge sharing,
exchanging experiences and building partnership and cooperation.
It is from this understanding that in May Last year at a time like
this one, KIAC held a workshop to assess the practice and to
share experiences from the EAC region, bearing in mind that the
lessons learnt from that workshop would guide the preparation of
today’s conference.
From the foregoing; therefore, we are convinced that in so doing
we are addressing the issue of integration and inclusion of new
entrants in the World wide practice of international arbitration. This
issue of integration and inclusion was central during ICCA congress
2014 held in Miami where it was raised as a potential threat to the
legitimacy of international arbitration.
Today’s conference however; is part of KIAC efforts to
institutionalize knowledge sharing and exchange of experiences in
arbitration practice. During our deliberations, it is my hope that we
should focus our attention more on technical issues of international
Arbitration practice, and examine challenges associated with its
development the World over.

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I hope you will use this occasion to exploit opportunities for
partnerships with fellow practitioners worldwide which is crucial
for integration and inclusion of new entrants in international
arbitration.
Dear Delegates, on our journey towards becoming a regional
choice for commercial disputes resolution, we have also drawn
lessons from crisis management. We received our ﬁrst Emergency
arbitration case that was a learning experience for us. Such lessons
should be exploited further in our discussions in this conference.
Furthermore, I notice that there are some areas which we need to
put more emphasis in our work. We need to come up with creative
solutions to mitigate the challenging issues before us.
I therefore look forward to the conclusions on the emerging issues
in international Arbitration to guide our practice.
Before concluding, I wish to recognize the following partners,
our funders; GoR, PSF, ICF and our Key stakeholders, such as the
Judiciary, they all have been supportive to the centre.
Special recognition goes to our sponsors of this conference.
Notably; Swiss Arbitration Academy which trains and awards a nine
months diploma program in international arbitration, International
Council for Commercial Arbitration-ICCA, The Law Society of
England, Trust Law Chambers-Rwanda, Fountain Advocates-
Rwanda, K-Solutions and Partners ALN-Rwanda.
Without further delay, I now invite His Lordship Prof. Sam Rugege,
The Chief Justice of Rwanda to come and give his opening address.
I thank you all for your kind attention; and wish you all fruitful
deliberations and a memorable stay in Rwanda. Thank you very
much.

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OPENING & KEY NOTE
HIS LORDSHIP PROF. SAM RUGEGE,
CHIEF JUSTICE OF RWANDA
Board Members of KIAC, The Secretary General and Team,
Eminent facilitators who have accepted to come and facilitate this
conference, distinguished participants, Ladies and Gentlemen:
I am very pleased to be here this morning to start this conference
with you, this very important conference for our country. We are
honoured that such world class experts in the area of arbitration
have accepted to come and participate in this conference. I hope
that while you are here, you enjoy the hospitality of Rwanda—
the modest hospitality we can offer and also to get to know the
country.
This meeting is important to us as a country mainly because we
are a country that as you know is emerging from very difficult
times where the society, the economy, the institutions were
virtually destroyed during the 1994 Genocide against the Tutsi but
since then, everything is being done to rebuild the country and
the economy, to uplift the standards of living of our citizens and
therefore, everything that can be done it terms of re-establishing
institutions, in terms of finding mechanisms that can improve
the environment for investment and for economic development
have been done and I see this conference and this emphasis on
arbitration as part of this whole process of economic development
and uplifting of standards of live in this country.
In particular, being from the judiciary, we are keen to promote
arbitration and other forms of dispute resolution, both in terms of
reducing the workload of the courts and also in terms of affording
the privacy and speed of resolution of disputes that international
investors and our domestic investors need for their businesses to
flourish and to continue.

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In this context, traditionally we have promoted alternative dispute
resolution. We as you know heard our traditional Gacaca courts
where members of the community came together to resolve their
disputes and to ensure that it is done in an amicable environment,
to ensure that once disputes are resolved, then people go back to
live together and continue their businesses together.
We also have the system of traditional mediation or Abunzi, which
is a system that we have all over the country to resolve all minor
disputes or disputes that can be resolved by citizens themselves
without having to go to court and that is what has been happening.
In fact we have made it a prerequisite that potential litigants ﬁrst
attempt to resolve their disputes at the local level without involving
lawyers and only if they fail to resolve their courts should they go
to court.
So arbitration, mediation and other forms of dispute resolution are
very much encouraged and we want to extend those processes
beyond the local level to the highest possible level so that even
complicated international disputes can be resolved without
recourse to the courts.
It is in that context that the judiciary of Rwanda together with other
institutions of government always encouraged KIAC so that it can
grow and reach a standard that is respectable around the world, so
that it can become a regional and international arbitration centre.
KIAC however is a young institution. As you know it started just
over two years ago but it is doing its best to reach international
standards and that is it organises conferences like this, with eminent
experts from around the world to be able to share experiences and
guide them as to how they can improve.
We from the judiciary and from government can promise to
continue supporting KIAC, to continue supporting arbitration and
other processes aimed at resolving disputes and continuously
improving the investment in this country so that we can continue
to move forward.
In particular, I think you notice that we have quite a good number
of judges here especially from the commercial courts, who have

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come to learn more about arbitration and to be able to apply it
in their supervisory capacity, supervising the arbitration processes
especially at the level of appointment of arbitrators where there
is a failure to agree on arbitrators, but also to ensure that if there
problems arising during the arbitration processes, they can be
resolved and arbitration proceeds as it should.
There is also the issue of enforcement of arbitral awards which
we also want our judges to be comfortable in the knowledge of
how to go about it and the best way to go about it. I also see the
President of the BAR Association here and am sure quite a number
of lawyers here. They are also encouraged to take on arbitration as
a serious part of their vocation.
Inthismeetingwealsohaveotherprofessionsfromotherdisciplines,
architects and so on, so that they are also aware of what is possible
in the arbitral processes.
So I think the other thing I would like to do is to congratulating
KIAC for organising these conferences taking place in Rwanda and
for the work they have done so far in establishing the centre on
a professional basis and for capacity building through training of
professionals in skills of arbitration.
This is very important if our centre is to be internationally respected,
we need to have skilled people and encourage KIAC to continue
this capacity building programmes. We can never be through with
learning at whatever age, so we continue to learn and improve.
I see some International arbitrators here, I am sure they learn
something new each time they go out there and teach others, so for
us this is a very important thing. I note that there are various topics
that you are going to discuss—very important topics, including
guerrilla tactics. I wish I could stay to learn about those guerrilla
tactics but unfortunately I was not invited to stay as a participant.
At this point I would like to thank you all, especially our international
visitors and all the participants and wish you very fruitful
deliberations in this conference and I think what remains is for me
to declare the conference oﬃcially open.
Thank you very much.

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PanelOne
EMERGENCY ARBITRATION:
THEORY AND PRACTICE
Many institutional arbitration rules including Kigali International
Arbitration rules 2012, ICC, SIAC, and AAA (ICDR) included a new
provision on Emergency arbitrator. These recent developments
beg the question of the utility of such mechanism, whether
demonstrated in the course or at the end of international arbitration
proceedings. The panel discussed each step and how such relief is
eﬀective in practice since procedure is in operation.
PANELISTS:
Mr. Mark E. Appel, Senior Vice president, ICDR, USA;
Prof. Datuk Sundra Rajoo, Director, KLRCA, Malaysia;
CHAIR:
Mr. Athanase Rutabingwa, Partner, MRB Attorneys & President of Rwanda Bar Association
Athanase Rutabingwa: Mark Appel is Senior Vice President of
the International Centre for Dispute Resolution (ICDR). ICDR is
the international division of the American Arbitration Association
(AAA), the world’s largest provider of private dispute prevention,
conﬂict management and dispute resolution services, education,
and training since 1926. Mr Appel is charged with primary
responsibility for ICDR operations in Europe, the Middle East and
Africa. He has got a vast experience of over 30+ years of global
dispute resolution as an arbitrator.
Professor Datuk Sundra Rajoo is the Director of the Kuala Lumpur
Regional Centre for Arbitration (KLRCA). He was the Immediate

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Past President of the Asia Paciﬁc Regional Arbitration Group
(APRAG) [2011-2013], a federation of nearly 40 arbitral institutions
in the region. Professor Datuk Sundra is a Chartered Arbitrator
and an Advocate & Solicitor of the High Court of Malaysia (non-
practising). He is also a Professional Architect and Registered Town
Planner. He has had numerous appointments as chairman, co-
arbitrator of three-man panels and sole arbitrator in international
and domestic arbitrations.
This panel is very important and unique, so I would say that it is
made up of imminent people. Professionals are going to learn
much through them on this morning’s topic which is entitled
“EMERGENCY ARBITRATION: THEORY AND PRACTICE.”

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By Prof. Datuk Sundra Rajoo Director, Kuala Lumpur Regional
Centre for Arbitration, Malaysia
The Global Emergence of Emergency Arbitrator Provisions
1. Why emergency arbitration:
The need for interim measures
In arbitration, as with all disputes, circumstances arise necessitating
the preservation of the status quo in relation to evidence, assets or
other key items, pending the final resolution of the dispute. For this
purpose, parties may seek to apply for “interim” or “conservatory”
measures. Article 26 of the UNCITRAL Rules for example provides
that the arbitral tribunal may, at the request of a party, grant interim
measures.1
Interim measures can take different forms as specified under the
UNCITRAL Rules. The tribunal may order parties to take action that
would prevent, or refrain from taking action that is likely to cause
(i) current or imminent harm or (ii) prejudice to the arbitral process
itself; it can also order the parties to provide a means of preserving
assets out of which a subsequent award may be satisfied; or it
could order them to preserve evidence that may be relevant and
material to the resolution of the dispute.2
“Emergency” interim measures
“Emergency” or urgent relief is interim relief required on an urgent
basis, namely before the formation of the arbitral tribunal. It is not
uncommon for weeks or months to elapse before the constitution
1 UNCITRAL Rules (2010). Article 26 (1).
2 UNICTRAL Rules (2010), Article 26 (2).
PRESENTATION ON EMERGENCY ARBITRATION:
THEORY AND PRACTICE
Institutional Experiences of Emergency Arbitration in Malaysia

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of the arbitral tribunal, during which time it may become necessary
to obtain an order preventing the other party(s) from taking action
or ordering the other party(s) to take action in order to preserve
evidence or assets.3
In instances where this need arises it is not logistically possible
under arbitral rules to form an arbitral panel and have a decision
rendered that would be able to provide the relief required. The
time and cost involved in the appointment of a full arbitral tribunal
would likely neuter the effectiveness of such relief. As a result,
parties have two options: 1. Go to court and make a request for this
interim relief or 2. Request emergency arbitration.
Emergency arbitration vs Court ordered relief
For a number of reasons, emergency arbitration is preferable. While
the parties are free to apply to the courts to obtain conservatory
measures in such situations, this method is less preferred by the
parties, who chose to arbitrate instead of going to the domestic
courts in the first place. This may be because of a negative
perception with the courts in some instances or simply because
they wish to keep the dispute confidential.4
If parties are forced to wait until the formation of a tribunal to
obtain relief, damage may already occur before the tribunal is
formed.5
Of course a party may be able to claim this damage in an
arbitration, however it is practical that this damage suffered should
be prevented if possible. According to some practitioners, if interim
measures can be obtained, some disputes have the potential to
settle earlier if damages are preventable by orders from emergency
arbitrators.6
Origins and implementation of emergency arbitration
Theneedofinterimreliefhasbeenrecognizedbyvariousinstitutions
and has been implemented into the rules of most leading arbitration
centres. These rules all follow the same underpinning principals,
which can be traced to provisions in the Model Law and UNCITRAL
3 Amir Ghaffari and Emmylou Walters, ‘The Emergency Arbitrator: The Dawn of A New Age’
In Arbitration International (2014) 30(1) at 155.
4 Ibid.
5 ALI YESILIRMAK, ‘International Commercial Arbitration’ (Kluwer Law International)
(2005) at 114.
6 Id, at 115.

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Rules. Article 17 of the Model Law and UNCITRAL Rule 26 are a
starting point behind emergency arbitration provisions which
allow a tribunal to order interim measures. However, an emergency
arbitration is a creature of its own and not an interim measure in
the same sense as the above mentioned provisions.
An emergency arbitration tribunal is composed to deal with an
urgent issue(s). Once the emergency arbitration award is rendered,
it is not interim, although under various sets of rules, an award may
be varied. If an award can be varied then arguably an emergency
arbitration award does not meet the ﬁnal award doctrine under the
New York Convention and is unenforceable; which is a controversial
issue in this topic that will be further investigated. However, this
is not the case, and in fact emergency arbitration awards are
enforceable, which will be explored further in this paper.
Emergency relief comes typically in two major forms: either
through the appointment of an emergency arbitrator or through
an expedited formation of the tribunal.
Some institutions provide both methods, such as the Singapore
International Arbitration Centre (hereafter “SIAC”) Rules7
, the
Stockholm Chamber of Commerce (hereafter ‘SCC’) Rules8
, Kuala
Lumpur Regional Centre for Arbitration (hereafter ‘KLRCA’) Rules9
and the Swiss Chamber Arbitration Institution (hereafter ‘SCAI’)10
.
Some institutions adopt only one of the methods. For example,
under the London Court of International Arbitration (hereafter
‘LCIA’) Rules11
only expedited proceedings are available. In most
cases the Emergency Arbitration Rules are included in an appendix
to a set of Rules.
2. The Evolution of Emergency Arbitration
Taking a historical and comparative look at the evolution of
emergency arbitration provisions is a good starting point to
understanding how an emergency arbitration functions.
7 SIAC Rules (2013) Art. 26(2) and Schedule 1.
8 SCC Rules (2010), Appendix II.
9 KLRCA Rules (2013), Schedule 2; KLRCA Fast Track Arbitration Rules (2013).
10 Swiss Rules (2012), Articles 42-43.
11 LCIA Rules (1998), Article 9(1).

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The International Chamber of Commerce (hereafter “ICC”) Pre-
Arbitral Referee procedure can be seen as a starting point in the
evolution to where modern day emergency arbitration stands
today.12
The ICC Pre-Arbitral referee procedure was a standalone
set of Rules from the ICC Rules that provided for urgent relief to be
given by a “referee” before the composition of an arbitral tribunal.
Since the Pre-arbitral referee procedure, the SCC implemented
Emergency Arbitrator Provisions that came into force on 1 January
2010.13
The SCC Rules are quite signiﬁcant as the Emergency
Arbitration Procedures were included in the SCC Rules themselves
as an appendix.
Emergency arbitration provisions as an addendum
Shortly after the SCC Rules were implemented the SIAC adopted
the identical rules as the SCC which came into force 1st July 2010.14
Following these institutions various other institutions such as the
Hong Kong International Arbitration Centre (hereafter “HKIAC”),
ICC, International Centre for Dispute Resolution (hereafter “ICDR”)
and KLRCA have all followed suit in adopting emergency arbitrator
provisions into their rules as an appendix or schedule. This adoption
of emergency arbitration procedures by other various institutions
is a clear adaption of arbitral rules to meet the needs of parties.
The inclusion of emergency arbitrator provisions as an appendix to
the rules has considerable importance. This being that there exists
the implied consent of parties to take part in emergency arbitration
proceedings, where the dispute resolution clause in the contract
refers to that set of rules.15
This consent to the emergency arbitration provisions exists though
a party adopting a set of arbitral rules in a contract which impliedly
include emergency arbitration. In contrast, the ICC pre-arbitral
referee procedure needed a speciﬁc agreement to refer disputes
to the pre-arbitral referee procedure.
12 Michael Dunmore, ‘Interim Measures by Arbitral Tribunals: The Enforceability Conundrum’
In Asian International Arbitration Journal (2012) 8(2) at 222.
13 SCC Rules (2010), Appendix 2.
14 SIAC Rules (2010), Schedule 1.
15 Michael Dunmore Supra n. 13 at 227.

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Prevalence of cases involving emergency arbitration
From the above, the true pioneer of the modern day emergency
arbitration procedure can be said to be the SCC. The SCC and
the SIAC have each recently published reports of the cases that
they have dealt with since there implementation of emergency
arbitrator provisions and a number of these will be highlighted.
The SCC in their report which was released at the end of 2013
covers the three years of emergency arbitration decisions and
includes summaries of all emergency arbitrator decisions.16
During
this time there were nine applications for emergency arbitration,
out of these applications, there were two decisions in favour of the
claimant.
The SIAC released a similar report stating that thirty-four
applications have been filed with SIAC for emergency arbitration,17
however the SIAC has not provided the same detailed summary of
the cases as has the SCC.
3. General Powers
Across the various sets of EA rules there are a number of
commonalities. The tribunal may order a party to take measures
to maintain or restore the status quo pending determination of
the dispute. A tribunal may order parties to take action that would
prevent, or refrain from taking action that is likely to cause current
or imminent harm or prejudice to the arbitral process itself. It can
also order the parties to provide a means of preserving assets out
of which a subsequent award may be satisfied, or it could order
them to preserve evidence that may be relevant and material to
the resolution of the dispute.18
The threshold for emergency relief
In order to succeed in obtaining such interim orders or awards,
generally arbitration rules provide that the parties will have to
show first that such measures are necessary because of irreparable
16 Johan Lundstedt, ‘SCC Practice: Emergency Arbitrator Decisions’ Accessed online at:
http://www.sccinstitute.com/filearchive/4/46698/SCC%20practice%202010%20-%20
2013%20emerge ncy%20arbitrator_FINAL.pdf.
17 Vivekananda N. ‘The SIAC Emergency Arbitration Experience’ Accessed Online at http://
www.siac.org.sg/2013-09-18-01-57-20/2013-09-22-00-27-02/articles/338-the-siac-
emergency- arbitrator-experience.
18 UNICTRAL Rules (2010), Article 26 (2).

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harms if the conservatory measures are not taken and that they are
likely to succeed on the merits of the case.19
For example, the SCC Rules provide that the tribunal may issue
any interim measure it deems proper.20
A tribunal may do so only
after the Claimant has ﬁrst satisﬁed to the tribunal that prima facie,
there is a reasonable probability that the Claimant may succeed on
the merits of its claim.
Out of the nine applications made for emergency arbitration the
two that were successful had clearly met the above threshold,
as well as four of the seven applications that were ultimately
unsuccessful had met this initial threshold.
Secondly, where an interim measure is requested, the Claimant
must, “as a general principle, also establish that the harm which
is to be prevented by the interim measure is irreparable and of an
urgent or imminent nature.”21
Similarly, the SIAC and KLRCA each have a similar threshold in
place, the satisfaction of which falls to the director of the KLRCA
or Chairman of the SIAC to determine.22
The test, similar to that
of the SCC, is a test of “real probability” of success as well as
whether irreparable harm is likely to be caused if interim relief is
not granted.23
These thresholds to meet are essential and noteworthy to prevent
vexatious claims being made. In addition to the threshold are the
fees charged by centres for emergency arbitration, which are
considerably expensive.24
Emergency relief through expedited procedure
In addition to emergency arbitration, there is a comparable
process which is expedited procedure. A brief introduction on the
expedited arbitration is illustrated in the LCIA Rules.
19 UNCITRAL Rules (2010), Article 26 (3).
20 SCC Rules (2010), Article 32 (1).
21 Johan Lundsted Supra n. 17 at 5
22 SIAC Rules (2013) Schedule 1 Article 2; KLRCA Rules (2013) Schedule 2 Rule 2. 23
Vivekananda N. Supra n. 18.
24 Pursuant to SCC Rules the fee of the Emergency Arbitrator is EUR 12,000, and the
administrative fee of the SCC amounts to EUR 3,000. See SCC Rules (2010) Art 10(2);
The KLRCA Emergency Arbitration (2013) fees for international cases are USD 10,000 for
arbitrator fees and USD 2,000 in administrative costs.

18 |
In exceptional urgency, on or after the commencement of the
arbitration, any party may apply to the LCIA court for the expedited
formation of the Arbitral Tribunal.25
This procedure allows the LCIA
court to fix any time limit under the LCIA Rules for the formation of
the arbitral tribunal in its complete discretion.
In practice, applications under Article 9 are most commonly
accompanied by an application for interim relief.26
The arbitrator or
tribunal may be appointed within 48 hours.27
4. Practice and Procedure:
In both emergency arbitration and expedited procedure, there are
a number of generally followed principles that can be highlighted to
further illustrate the procedural aspects of emergency arbitration.
Interaction with the courts
The first characteristic is that an emergency arbitration can be
considered “compatible with court proceedings.” Generally the
emergency arbitral rules clarify that the emergency arbitration
provisions are not intended to prevent any party from seeking
urgent interim measures from domestic courts; emergency
arbitration provisions are compatible with the request for interim
relief from the courts.28
Next can be considered “other express or implied principles.” This
is where arbitration institutions share other principles regarding
emergency arbitrator proceedings, which are either specifically
laid out in the rules, implied or followed in practice.
Requirements for commencing emergency arbitration
First generally it is required that a party seeking emergency relief
must show that the matter truly cannot wait for the constitution of
the arbitral tribunal.29
This has been highlighted in the examples of
the SIAC and SCC rules.
26 Raja Bose and Ian Meredith, ‘Emergency Arbitration Procedures: A Comparative Analysis’
[2012] In ‘International Arbitration Law Review’ 5, Accessed Online at http://www.
klgates.com/files/Publication/33e561cb-b459-47f5-bab1-856c51d8459b/Presentation/
PublicationAttachment/f5e1a648-049e-4f63-afcf-f8d4dc91bae2/Emergency-
Arbitration-Procedures_A-Comparative-Analysis.pdf.
27 Ibid.
28 SIAC Rules (2013), Rule 26.3; SCC Rules (2010), Article 32(5).

REPORT
| 19
It is also common practice that Emergency Arbitrator Proceeding
are limited to signatories to the arbitration agreement or their
successors to the exclusion of third parties.30
This has been
demonstrated in SCC Emergency Arbitration (064/2010),31
where
the claimants request to have an injunction granted against a third
party that was not a signatory to the agreement was denied.
Moreover, the protection of Respondents is reflected as a principle
in different rules as well. For example, typically the applicant will
bear the initial burden to pay the fee for the Emergency Arbitrator
procedure under different rules.32
However the costs may be
apportioned at the request of the parties,33
or under the KLRCA
Rules at the discretion of the arbitrator.34
Timelines under emergency arbitration
While under all rules, the emergency proceedings are required
to be conducted in a speedy manner, different institutions have
different timeframes for this proceeding. Under the SIAC Rules,
an emergency arbitrator must be appointed within one business
day of receipt of the application and any challenge regarding the
appointment must be submitted within one business day. Once
appointed, within two business days the arbitrator must provide a
schedule to dispose of the application.35
The ICC Rules requires the emergency arbitrator to be appointed
within 2 days from the Secretariat’s receipt of the Application
and the parties have three days to submit a challenge regarding
the appointment. Within 2 days, a procedural timetable for the
emergency arbitrator proceedings must be established by the
arbitrators; the final decision must be made no later than 15 days
from the date since the file was transmitted to the emergency
arbitrator.
Under the KLRCA Rules the Director of the KLRCA appoints an
arbitrator within 2 business days,36
and within 2 business days
of being appointed the emergency arbitrator shall establish a
30 ICC Rules (2012), Article 29(5).
31 Johan Lundstedt, Supra n. 17 at 4.
32 SIAC Rules (2013), Schedule 1 Article 1; SCC Rules (2010), Appendix II Article 2(vi); ICC
Rules (2012), Appendix V Article 1(3)(h).
33 SCC Rules (2010), Appendix II Art 10 (5).
34 KLRCA Rules (2013), Schedule 2 Rule 18.
35 SIAC Rules (2013), Schedule 1 Articles 2, 3, 5.

20 |
schedule of the proceeding.37
An award must then be rendered
within 15 days from the date of appointment.38
Costs
In terms of costs, most sets of institutional rules have a separate
scheme of costs relating to emergency arbitration proceeding,39
as distinguished from the costs of the regular arbitral proceedings.
The SIAC Rules simply leave the setting of the costs to the Registrar
while the ICDR Rules also does not provide a separate payment
scheme for the emergency arbitrator proceeding.40
Under the
KLRCA Rules the costs are set out in a separate schedule, however
the arbitrator has the power to determine apportionment of the
payments between the parties.41
Although typically the party who applies for emergency relief bears
the burden initially to pay the costs of the emergency arbitrator
proceeding at the time of filing the application, under different
institutional rules how this costs can be proportioned between the
parties later on differs.
The SCC Rules provide that the arbitral tribunal may later
redistribute these costs upon a party’s request in its final award.42
Although it has been highlighted that pursuant to Article 32(1)
of the SCC Rules which provides that the emergency arbitrator
may grant any interim measures it deems appropriate, this may
include the power to allocate the costs of the emergency arbitrator
proceeding.43
In contrast, ICC Rules specifically state that the emergency
arbitrator’s order shall fix the costs of the emergency arbitrator
proceeding and decide which of the parties shall bear them or in
what proportion they shall be borne by the parties.44
Under the KLRCA Rules the Claimant must pay the non-refundable
registration fee, like the SCC Rules the KLRCA Rules provide that
39 SCC Rules (2010), Appendix II Article 10; ICC Arbitration Rules (2012), Appendix V
Article 7.
40 SIAC Rules (2013), Schedule 1, Article 1; ICDR Rules (2009), Article 37.
42 SCC Rules (2010), Appendix II Article 10(5).
43 Patricia Shaughnessy, ‘Pre-arbitral Urgent Relief: The New SCC Emergency Arbitrator
Rules’ In Journal of International Arbitration, (2010) 27(4) 348 at 349.

REPORT
| 21
an arbitrator may order or award interim relief that the emergency
arbitrator deems necessary.45
Duties of the emergency arbitral tribunal
There are various duties and powers that emergency arbitrators
have, many of which are the same under an institutions standard
rules. To commence a discussion of the duties and powers of an
emergency arbitrator a good starting point is with an emergency
arbitrators duties of impartiality and independence. Prior to the
appointment, the emergency arbitrator must sign a statement of
impartially and independence.46
Under the rules of most institutions, emergency arbitrators have
the power to conduct the proceeding in a manner that she or he
deems to be appropriate, provided that the emergency arbitrator
shall act fairly and impartially and ensure that each party has a
reasonable opportunity to present its case. 47
Regarding the making of the decision, generally the emergency
arbitrator has the power to grant any interim measure as it deems
appropriate.48
It is a requirement under most rules that the decision
should be in writing with reasoning provided.49
The duties of the emergency arbitrator diﬀer in respect of an
arbitrator, in a number of subtle ways. Under most rules an
emergencyarbitratorisprohibitedfromactingasanarbitratorinany
arbitration relating to the dispute that gave rise to the application.50
Of course however, if parties agree, the same arbitrator may sit
in the underlying arbitration. This may be an advantage in some
instances for parties to allow the same arbitrator to hear the case
as they will already possess background knowledge of the dispute.
44 ICC Rules (2012), Appendix V Article 7(3).
46 ICC Rules (2012), Appendix V Article 2(5); SIAC Rules (2013), Schedule 1 Article 3; ICDR
Rules (2009), Article 37(3).
47 ICC Rules (2012), Appendix V Article 5(2); SCC Rule (2010), Appendix II Article 7.
48 ICDR Rules (2009), Article 32(1); SIAC Rules (2013), Appendix 1 Article 6; KLRCA Rules
(2013) Schedule 2 Article 10.
49 SCC Rule (2010), Appendix II Article 8(2); SIAC Rules (2013), Schedule 2 Article 6; ICC
Rules (2012), Appendix V Article 6(3); KLRCA Rules (2013), Schedule 2 Article 10.
50 ICC Rules (2012), Appendix V Article 2(6); SIAC Rules (2013), Schedule 1 Article 4;
KLRCA Rules (2013), Schedule 2 Article 4; SCC Rules (2010), Appendix II Article 4(4).

22 |
Finality of an award or order for emergency relief
Furthermore, the emergency award or order may be modified,
terminated or annulled by the emergency arbitration upon
a reasoned request by any party.51
As to the binding effects
of emergency arbitrator’s decision, generally an emergency
arbitrator’s decision is binding on the parties, but not a tribunal
hearing a subsequent arbitration between the parties.
Following this the duty to render a final award is not the same
in emergency arbitration as that in an arbitration. Adding to this
diversion, some rules expressly prescribe that once the tribunal is
formed, the arbitral tribunal can also reconsider, modify or vacate
the interim order or award made by an emergency arbitrator. 52
This final point leads to a considerably academic question of how
emergency arbitrator rules are enforceable if they may be modified.
5. Enforceability:
One issue that may undermine the benefits afforded to a party
by emergency arbitrator provisions is the uncertainty existing
regarding the enforcement of orders or awards rendered by
emergency arbitrators. This is notwithstanding that various
institutional rules have prescribed that parties must comply with
the binding decision of the emergency arbitrator.
In the case that parties do not comply voluntarily there are various
approaches that can be used to illustrate that an emergency
arbitrator award is enforceable, such as under contract and
potentially under the New York Convention.
Enforcing emergency relief under the New York Convention
The uncertainty of enforceability is posed by several issues. First
of all, some argue that an interim order or award rendered by
Emergency Arbitrators like other interim measures due to their
temporary nature may not be considered as “final.” Thus they may
be considered unenforceable under the applicable national regime,
or New York Convention.53
51 ICC Rules (2012), Appendix V Article 6(8); SIAC Rules (2013), Schedule 1 Article 6; SCC
Rules (2010), Appendix 2 Article 9(2).
52 SIAC Rules (2013), Schedule1 Article 7; SCC Rules (2010), Appendix II Article 9(4);
KLRCA Rules (2013), Schedule 2 Rule 14(b).

REPORT
| 23
Traditionally many courts only enforce final awards, although many
countries have adopted the UNICTRAL Model Law where both
interim measures and final awards rendered arbitral tribunals are
binding and enforceable.54
Under Article 5 of the New York Convention, in order for an award
to be binding it must be final, which is referred to as the “Final
award doctrine.” With the fact that an emergency arbitration award
may be modified or varied, questions whether an award is final and
enforceable.
This paradox is addressed by Gary Born who states, “provisional
measures should be and are enforceable as arbitral awards
under generally applicable provisions for the recognition and
enforcement of awards.”55
In this regard an interim award or
emergency arbitration award is an award on its own and has finality
in the sense that it provisionally determines the rights of parties.56
That being on a limited issue, separate from the main issue to be
decided in an arbitration.
This above analysis conforms to the view expressed by Southern
District Court of New York where the court stated in Southern Seas
Navigation,
“Such an award is not “interim” in the sense of being an
“intermediate”steptowardsafurtherend.Ratheritisanendinitself,
for its very purpose is to clarity the parties’ right in the “interim”
period pending a final decision on the merits... [I]f an arbitral award
of equitable relief based upon a finding of irreparable harm is to
have any meaning at all, the parties must be capable of enforcing
or vacating it at the time it is made”57
From these authorities, there is a very strong argument in favour of
emergency arbitration awards being enforceable.
53 Chester Brown, ‘The Enforcement of Interim Measures Ordered by Tribunal and
Emergency Arbitrator’ In International Arbitration in Albert Jan Van Den Berg (ed),
International Arbitration: The Coming of a New Age?. ICCA Congress Series, Volume 17
(Kluwer Law International) (2013) at 286 Citing Resort Condominiums International, Inc v
Bolwell [1995] 1 Qd R 406.
54 UNCITRAL Model Law 2006, Articles 17(h)&(i).
55 GARY B. BORN, ‘International Commercial Arbitration’ (2009) at 2023.

24 |
Characterisation of emergency relief – Order or Award?
Another area of uncertainty has to do with the designation of
the decision by Emergency Arbitrators as “order” or “Award”, as
only “awards” are enforceable under the New York Convention or
legislation implementing the New York Convention.58
Interestingly, the ICC rules have specially prescribed that the
Emergency Arbitrator’s decision is rendered in the form of an
order59
while other institutions have allowed the decision to take the
form of either an award or an order.60
Nevertheless commentators
have pointed out the substance rather than the form of a decision
should be the determinative factor regarding the decision’s
enforceability.61
In conducting a substance over form analysis, an enforcing court
will look to the substance of what is decided and not the term used
to describe a decision (being an order or an award).62
Illustrating
this is PT Pukafuafu Indah63
where there was an application to set
aside an interim award. The High Court of Singapore stated that it
can review awards, but their power is limited to substance of the
award. The court highlighted that when determining if a decision is
an order or an award the substance over form test is used.
In this regard the substance of a decision is decisive, not the form
of the award. The order (in this case an anti-suit injunction) was
substantive relief with only an interim effect. The court stated that
an order is specifically excluded from the definition of an award.
The court mentioned that orders must be enforced by the Court
but stopped short of saying that they could be denied enforcement.
Classifying emergency relief through statute
A creative approach to deal with the issue of enforceability of
emergency arbitration awards that should be mentioned has been
taken by the Singapore Parliament. In this regard, the Singapore
Parliament passed an amendment to the International Arbitration
Act on April 9 2012; which amongst other issues, clarified the
enforceability paradox.
57 Southern Seas Navigation Ltd v Petroleos Mexicanos of Mexico City, 606 F. Supp. 692
(SDNY, 1985). 58 Chester Brown, Supra n. 54 at 286.
59 ICC Rules (2012), Appendix V Articles 29(2), 6(1).
60 SIAC Rules (2013) Schedule 1 Article 6; ICDR Rules (2009) Article 37(e).
61 Amir Ghaffari and Emmylou Walters, Supra n.1 at 162.
62 Id. at 225.
63 And others v Newmont Indonesia Ltd and another [2012] SLR 1157.

REPORT
| 25
The new amendment specifically accorded the Emergency
Arbitrations the same legal status as that of an arbitral tribunal64
and thus decisions of Emergency Arbitrators can be enforced
through Singapore Courts with certainty. Thus far Singapore is the
only jurisdiction to enact such provision.
Enforcing emergency relief through contract
One final approach taken, which may be the simplest approach to
enforcing emergency arbitration awards is through a contractual
approach. This has been touched on above, being that parties
contractually agree to have a certain set of arbitration rules apply to
determine their disputes. In this agreement there is an implication
that emergency arbitration may apply and that agreeing to use
these awards, parties contractually agree to carry out any award
rendered.65
Thus through the acceptance of the rules by parties,
they implicitly agree on any award rendered stemming from the
rules.
6. Concluding remarks
As the above analysis has outlined, emergency arbitration is a
relatively new player in the sphere of international commercial
arbitration. There have been widespread adoptions of emergency
arbitration procedures in all leading arbitration rules, unfortunately
there has so far been only minimal reports on the use of the
provisions and even smaller reports of the outcomes.
With such extensive adoption of emergency arbitrator provisions
across the world, it would be interesting and useful to obtain more
information of the procedures in practice. Despite the widespread
acceptance and modification of arbitration institution rules to
allow for emergency arbitration, there are as outlined generally
consistent procedures and practices in how emergency arbitration
is conducted. This consistency adopted by various sets of rules is an
essential starting block for emergency arbitration internationally.
64 Article 2(1), Singapore International Arbitration Act 2012: In this Part, unless the context
otherwise requires —“arbitral tribunal” “means a sole arbitrator or a panel of arbitrators
or a permanent arbitral institution, and includes an emergency arbitrator appointed
pursuant to the rules of arbitration agreed to or adopted by the parties including the rules
of arbitration of an institution or organisation.”

26 |
One noteworthy element of emergency arbitration provisions
in practice is the threshold that must be met for a case to be
determined, which conceivably considering the need for urgent
relief, is not a low one to meet. Once the first threshold has been
satisfied in addition to successfully arguing a claim, the Claimant
must demonstrate in a very short time frame that they will suffer
irreparable harm if relief is not granted. Following the above,
bringing a successful emergency arbitration claim is not a simple
task.
If a party is successful in receiving an emergency arbitration
award in their favour, potential further uncertainty exists. First
is that the award may be varied or modified by a subsequent
tribunal. Secondly is that there exists some uncertainty as to the
enforceability of the awards. However, regarding enforceability,
from the above it appears that an emergency arbitration award
can be considered enforceable through various approaches.
Notwithstanding, there is a scarcity of cases to date dealing with
the enforcement of emergency arbitration awards, especially
relating to the final award doctrine of Article 5 of the New York
Convention. As only a small summary of emergency arbitration
awards have recently been published, we can only start to have a
small comprehension of how emergency arbitration functions in
practice. Only as the use of emergency arbitration continues will
these uncertainties become clear and this facet of international
commercial arbitration further develop.

REPORT
| 27
Sometimes one simply has to have it—emergency relief, that is—
particularly when the proverbial ship is leaving the dock.
Arbitral tribunals have long had the authority to grant interim relief
under the rules of the major arbitral institutions2
. But what if one
desperately needs interim relief before the tribunal is constituted?
Situations that cry out for instant relief might include the following:
A current strategic partner has announced that it is leaving a long-
running commercial relationship for a competitor and one partner
is concerned about the use of proprietary information obtained by
the departing partner.
A company has refused to make a critical contract progress
payment, putting a “fast- track” project at risk.
A state or state-controlled entity has taken steps that require either
abandonment or forfeiture of a private investor’s holdings.
The inability to obtain emergency relief before the arbitrators
in an international arbitration can be appointed has troubled
practitioners and arbitral institutions for some time. To remedy
this, in 1990, the International Chamber of Commerce Court of
Arbitration (ICC) published its Rules for a Pre-arbitral Referee
Procedure3
, the highlights of which included the appointment of
a referee within eight days and provision for an order within thirty
days of receipt of the ﬁle by the referee.
PRESENTATION ON INSTANT RELIEF
WHEN YOU NEED IT
Mark E. Appel1
1. Senior Vice President, International Centre for Dispute Resolution. Call +353 (0)86 820
1054, e-mail AppelM@adr.org or see www.icdr.org for more information regarding the
International Centre for Dispute Resolution. This paper appeared in the 23 April 2007
issue of Cahiers de l’arbitrage. The author would welcome any comments.
2. E.g., ICDR International Arbitration Rules, art. 21; ICC Rules of Arbitration, art. 25; London
Court of International Arbitration (LCIA) Rules, art. 25.
3. ICC Court of Arbitration, Pre-arbitral referee procedure and commentary available at
www.iccwbo.org.

28 |
More recently, in 1999, the American Arbitration Association
(AAA) responded to the expressed need for interim relief before
appointment of the tribunal by creating rules for “emergency
measures of protection”4
. These rules were optional (which is
why they were called Optional Rules for Emergency Measures
of Protection) and were initially published only with the AAA
Commercial Arbitration Rules. These rules provided for an
emergency arbitrator to be appointed within one business day,
and interim relief could be awarded if ”irreparable loss or damage”
could be shown. The continuing discussions of an UNCITRAL
Model Arbitration Law Working Group on the availability of
ex-parte interim relief, which has generated sustained, lively
debate,5
emphasizes the importance of interim relief to parties to
international arbitration.
The difficulty with AAA Optional Rules for emergency relief
and the ICC pre-arbitral referee procedure is that they must be
agreed to, separate and apart from the agreement to use the
institution’s arbitration rules. In other words, incorporating the
International Centre for Dispute Resolution (ICDR) or ICC model
dispute resolution clause6
in the contract documents did not allow
emergency relief procedures to be invoked. It was necessary to
include language in the dispute resolution clause expressly electing
to use one of these sets of pre-appointment, emergency relief
rules. But contract managers and counsel have been appropriately
concerned about introducing new language into their contracts,
fearing that the other party might think future difficulties are
anticipated. So couldn’t the separate election requirement be
eliminated? The fact that neither the AAA Optional Rules nor
the ICC pre- arbitral referee procedure has received much use7
seemed to indicate that the separate election requirement could
be dispensed with.
4. American Arbitration Association Commercial Dispute Resolution Procedures (Including
Mediation and Arbitration), Optional Rules for Emergency Measures of Protection, As
Amended and Effective September 1, 2000, available at www.adr.org.
5. See Reports of UNCITRAL Working Group II (Arbitration and Conciliation) from Session
37 (Oct. 2002) through Session 44 (Jan. 2006) at www.uncitral.org.
6. The ICDR is the International Division of the AAA. The ICDR model arbitration clause
reads as follows: “Any controversy or claim arising out of or relating to this contract shall
be determined by arbitration in accordance with the International Arbitration Rules of the
International Centre for Dispute Resolution.”
The parties should consider adding:
“The number of arbitrators shall be (one or three).” “The place of arbitration shall be
(city and/or country).” “The language(s) of the arbitration shall be ______.”
The ICC model arbitration clause can be found at www.iccwbo.org.

REPORT
| 29
The ICDR took that important step—removing the separate election
requirement—whenitdecidedin2006tocreateanewRule37ofthe
ICDR International Arbitration Rules. New Rule 378
created access
to emergency relief prior to formation of the tribunal, without the
need for additional contract language. Stated differently, in cases
of demonstrated need, emergency relief became available as a
matter of right under the ICDR Rules in arbitration proceedings
conducted under arbitration clauses or agreements entered into
on or after 1 May 20069
.
How does Rule 37 deal with ex-parte applications for relief? The
drafters10
resolved this issue by requiring that the application for
emergency relief include a statement certifying that all parties
have been notified in writing, or explaining the steps that were
taken to notify all parties of the application for emergency relief.
Regarding steps to prove notice, technology can help (e.g. facsimile
confirmation result report with date and time of delivery).
Rule 37 requires notice of:
• the nature of the emergency relief sought,
• the reasons why relief is required on an emergency basis, and
the reasons the applicant believes it is entitled to emergency
relief.
In recognition of the need for a speedy resolution, an application
for emergency relief may be served by email, facsimile, or “other
reliable means”11
.
The ICDR is charged with appointing the emergency arbitrator
within one business day12
, which is no small challenge for the
administrator. Not only must the institution consider the usual
factors for appointment (e.g., the nationality of the parties, the
subject matter of the dispute, any probable conflicts of interest),
but also the need for an arbitrator who can decisively address
7. The ICC Pre-arbitral referee procedure has been invoked seven times since 1990. The AAA
Optional Measures have been used several times.
8 ICDR International Arbitration Rules, art. 37; full text of ICDR International Arbitration
Rules available at www.icdr.org.
9. In recognition of this substantial new right, the Rule was applied prospectively only.
10. For the drafters’ own views, see Sheppard, Ben H., and Townsend, John M., Holding the
Fort Until the Arbitrators Are Appointed: The New ICDR International Emergency Rule,
Dispute Resolution Journal, vol.61, no. 2 (May-July 2006).
11. ICDR International Arbitration Rules, art. 37.2.

30 |
difficult issues in a severely truncated time frame. To facilitate
the appointment process, Rule 37 provides that the emergency
arbitrator will be appointed from a special roster created for this
unique caseload.
As for potential conflicts of interest, emergency arbitrators are not
treated any differently than other arbitrators in ICDR proceedings.
The rule provides that a prospective emergency arbitrator “shall
disclose...any circumstances likely to give rise to justifiable doubts
to the arbitrator’s impartiality or independence”. The procedure
for challenging the appointment of an emergency arbitrator is an
expedited one, with parties having only one business day to file
their objections with the ICDR13
.
Onceappointed,theemergencyarbitratorisobligatedbyRule37to
establish a schedule for the taking of evidence within two business
days. Consistent with due process expectations, parties are to be
given a reasonable opportunity to be heard. That opportunity can
be provided by telephone or on the basis of written submissions14
.
Article 37 mirrors the ICDR international rule regarding the scope
of arbitral authority. So, for example, the emergency arbitrator has
the authority to rule on his or her own jurisdiction and may order
or award any interim or conservancy measure deemed necessary15.
The authority to issue an award or order, as opposed to an order
only, makes the ICDR emergency procedure distinguishable from
the ICC pre-arbitral referee procedure. A Rule 37 order or award of
emergency relief is required to be reasoned16
.
Returning to the “leaving the dock” imagery above, one need not
think too hard to imagine the potentially disastrous impact of an
emergency order or award (think of all that nasty spoilage!). The
drafters of Article 37 appear to have taken that into consideration
in several ways. First, the emergency arbitrator may condition the
award or order of emergency relief on the posting of appropriate
security17
(e.g., a bond). Second, in an acknowledgement that

REPORT
| 31
circumstances may change, or that new facts may emerge, or that
an order or award may not have its intended eﬀect, the emergency
arbitrator is empowered to vacate the order or award “for good
cause shown”18
.
The authority of the emergency arbitrator ends once the arbitral
tribunal is constituted19
. Article 37 allows the emergency arbitrator
to be appointed as a member of the tribunal, but only if the
parties agree20
. The likelihood of that happening seems remote.
A party against whom emergency relief is ordered is unlikely to
have an appetite for more decisions by the same arbitrator. Once
constituted, the tribunal may reconsider, modify or vacate all
emergency awards and orders21
.
Given the prospective application of Rule 37, eﬀective 1 May 2006,
it could be some time before the full impact of the provision is felt
(although, remarkably enough, it has already been used). What is
certain, however, is that transnational commerce has available to
it a simple yet powerful tool for the rapid resolution of emergency
matters.

32 |
Discussions
ATHANASE RUTABINGWA (RWANDA): Once again I want to thank
the presenters for their wonderful presentations, they have been
on time. The next course is now to request the audience to give
in your comments, your contributions, but I just want to say that
under the KIAC rules under article 34 and its annex II, emergency
arbitration is also provided for.
This has its roots from the Rwandan law on arbitration especially
in article 11, article 15 and article 23, from the Rwandan Arbitration
Act. It states emergency interim measures that can be sought by
parties into arbitration. I am referring to these articles because both
of them have presented about the institutional arbitration, but also
you remember that in arbitration you have even ad hoc arbitration
where these articles come in and guide parties that want to seek
arbitration.
Without taking much of your time, I just want to ask any of you
who may have a contribution, who may want to ask something. A
colleague outside there asked me, what’s the diﬀerence between
emergency arbitration and interim measures? My answer was that
they are similar, or they are the same. I think the answer has been
received now.
When my colleague here was presenting, he talked about the
appointment of an emergency arbitrator, I think it’s the assistant
that appoints that person, but who issues the interim measures? Is
it the arbitrator or the arbitral tribunal? Or it’s an ordinary court? I
need this clariﬁcation and then we can take other questions from
the audience.

REPORT
| 33
MARK E. APPEL (USA): Well, so let me say something quickly,
there is an issue regarding, first, the threshold issue by the person
spoken to by my colleague as to whether it is inappropriate filing.
Institutions have personalities just like companies have cultures. At
ICDR that issue is determined by the arbitrator, by the emergency
arbitrator. So you have access to the process by virtue of your
access to the rules. By your reference, the rules in your contract
give you access to the procedure. Once you have got access, any
party can ask for emergency measures.
It is up to the arbitrator to determine in the first instance, whether
the matter is appropriate, whether there is rise to the lever of an
emergency, if he will; ah, in terms of taking jurisdiction and deciding
on the matter.
Also, the difference with the institution is, we talked about costs,
our approach, and you know again, its culture is that we believe
the case should be resolved quickly , we do not charge , may be
that is reflected in the recorded cases. We do not charge for a
request of emergency measures. It is part of the charge when you
are filing the case. It is all included in the initial charge until we get
the matter resolved.
Ultimately, again, reflecting on the way we approach things, it is
the arbitrator not the institution that issues the award, or an order,
it comes through the institution but it is sent down to the party, so
an emergency arbitrator makes the decision and the decision is
either in the form of an order, or an award which is transmitted to
the parties by the institution.
DR. URS WEBER STRECHER (SWITZERLAND): I would like to add
three short remarks from the Swiss perspective and Swiss rules.
As Sundra said it’s not just in Asia, but it’s also in all Europe; Austria
and Germany are exceptions. Most of Danish institutions have felt
the need to introduce emergency arbitrator scheme, so we have
done the same and we also have the possibility to have a decision
in the award but I think it’s probably difficult to have it enforced, I
see it because it’s not a final decision, but what I could imagine is
that if you have a problem that parties have to abide by the order
what usually happens in the most of the cases is that they do.

34 |
But if they don’t you would probably go to the state court and
ask them to issue an identical order, like the arbitral tribunal, then
you do not have the enforcement in the technical sense but you
could have an order by the state court, that is identical, but it is the
identical order that can be enforced. So that is the ﬁrst thought.
Second is we have in addition to the emergency or also the
emergency arbitrator has the possibility to issue an expert decision,
and I think that is a very special, speciﬁc feature in international
arbitration, and most of the colleagues from foreign jurisdiction I
havetalkedtohavebeensurprisedtoseethis,becauseitisadecision
before the other party can have a say on the interim measure, and
this is something very strange in international arbitration where we
always have to learn to be heard. But it takes care of it that at the
time the order is issued you have the possibility to immediately
comment or it’s really immediately at that time.
I mean, there are cases like the one you mentioned, if you have
to preserve assets, for instance this may be not solved requesting
party any more if the other is deposing by or it’s informed prior
to its decision. But this can only be issued in an order and not in
interim award.
Then I would like to make a shorter third comment with regard to,
Sundra’s remark that it may be right not to have such an emergency
scheme because you have good courts system. I think we have
good court system too in Switzerland and I do not see that we use
this emergency scheme for arbitration it’s very hard to enforce the
interim award against a company or a party in Switzerland. But
we have cases, most of the cases actually we have in Switzerland
we have to enforce them somewhere else, and may be quite often
in states where the court system is not so reliable with regards to
interim measures; you know, in this case it makes very much sense
to have such emergency scheme.
ATHANASE RUTABINGWA (RWANDA): Thank you so much for
sharing your contribution.
DAVID GREENE (UNITED KINGDOM): Very often its freezing, at
such junction what we used to call it bravery; it requires to see
them tactically; very often they are so tactical, that advantage you

REPORT
| 35
try to get is eﬀervescent that follows from the injunctive relief, and
I wonder if the expert proceedings you have contemplate that the
arbitrator will be able to make an award or an order.
JUDGE KARIUKI MUIGUA (KENYA): Mark, am aware that under
the ICDR rules this is an order; this is an award as opposed to an
order, but conceptually, is the debate closed? What should it be? Is
it an award or an order? And can we reopen that debate as in; so
that we debate the concept today?
Secondly, what safety can be put in place to ensure that this
emergency procedure is not abused by litigants who want to just
punish respondents.
MARK E. APPEL (USA): Under the ICDR procedure it’s up to the
parties to choose. I will tell you a story I got in the IBA in Dublin,
some of you might have heard. A couple of years ago, one of our
English colleague David, talked about proceedings under the
emergency measures proceedings. And he said that at the end, we
scheduled the matter quickly, we received arguments in writing,
convened them thorough the telephone conference call to seek
their arguments, and then say, eh, telephone is much better that,
like you know, a judge who seats on the bench, “ I have made
my mind up and am going to give the other party what they are
seeking in this case. Let me ask you council, what would you prefer,
is it an order or an award?”.
And he said council came back and said, eh, all things considered,
Mr arbitrator, I would like an award. And he issued an award.
And he asked out loud in the conference what they think should
happen. But I know about twenty rows in front of me, i know a
council, of he would like to get up and say something, I would only
say he had the opportunity. Indeed, he got up and said let me tell
you what happened, I took that award, I presented that award to
my counterparty and asked for satisfaction. It was denied and I
took that award into two separate state courts and got more ever
damages from two separate state courts based on that award. So
what he said, I sort of wondered out, which would you rather have,
would you rather have an award or an order?

36 |
I now would, I just take a little bit of issue with my colleague and
is saying in terms of, I don’t think it was settled as to whether
an emergency award can be enforced or not, and the law, is a
wonderful thing that just keeps developing. It just would not be
appropriate to leave that decision to the advocates or arbitrators
alone.
PHILIP ALIKER (KENYA): A concern to those particularly looking
for emergency relief in the United States, now, if circumstances
where there are sanctions imposed that are regulated by the office
of foreigners control creates an extra cargo in terms of obtaining
an emergency relief.
This is something that has concerned me in the context of Libya
during the Libyan problems; particularly given the prevalence of
Libyan investments across this part of the region. But it is also
something that also rises in the context of both Sudan and south
Sudan.
Now I just wonder, given the peculiar position of AAA or the ICDR,
and I will put this as a question, is there anything that AAA do to
help parties, particularly parties from this part of the world that are
looking for relief, that have to go through this very time consuming,
this difficult process getting permission from the office before they
get relief?
Often, and this is something I have used when I was involved in
AAA application and I actually got an arbitrator in New York to
make an order, at the effect of which was to make very tranquil
schedule that was sent that precipitated the granting of licenses
to deal with cases. But I am sure colleagues, should be concerned
if they don’t turn up at an airport in America and get arrested for
dealing with cases from South Sudan or Sudan or Libya in that
matter. Thank you.
MARK E. APPEL (USA): Under arbitration proceedings, whether
it is money laundering, or whether it’s, flying issues like this that
you referred to in your remarks I don’t know if any of us was sure
of where all of this is going; except to say that we have to pay
attention; you know.

REPORT
| 37
I want to congratulate you on your very creative approach, in your
particular arbitration. And, frankly I think, you know, well, I think we
all have a responsibility as an industry to work with government,
and in particular to work with the judiciary, I think our colleagues in
ICDR have done particularly a good job in that regard and we need
to do more. There are ways we should complement each other,
having said that I want to tell you another quick story.
Now twenty plus years meeting with the general counsel of a
company, and he said yes you have done a very good job with
on our contracts, but what do you know about the regulator? My
response was nothing. It is diﬃcult and I am sorry to say that there
is probably no immediate answer to your question.
ATHANASE RUTABINGWA (RWANDA): Thank you so much, I
think Philip you understand what the answer is. We only have eight
minutes to go and I want to keep time, so I just want to get to two
other people.
GÜNTHER J HORVATH (AUSTRIA): The discussion, Professor
Sundra that you were referred to last night with respect to
alternative to the emergency arbitrator would focus on practical
experience. I think if you chose a jurisdiction which is very liberal
towards establishing jurisdiction for a claim registered with a court
prior to arbitration. Then it is important to really discuss whether
you need the emergency arbitrator. That’s the case in Austria. I will
give you an example which was published in newspapers
Wewereabletoblockthetransportofelectronicmaterialovernight,
based on an arbitration agreement between an American company
and actuary a recipient company. The court issued this measure in
about ten hours; the judge himself showed up in court to accept the
application at 4 O’clock in the morning. And went personally to the
airport and did not allow the cargo plane to continue further on. It
was a very important measure in the interest of the US government
because the material was very sensitive. These instances may only
possibly be reported because the Austrian courts procedure is
very liberal in establishing a venue, in establishing the jurisdiction
for the court; and the only link in this case was the fact that this
plane had been landing in Vienna, and base on the property which

38 |
was in that moment on its soil, it was sufficient for the court to have
jurisdiction. That led us to the conclusion that combination of fast
like proceedings and this very efficient court proceeding might let
us live without an emergency arbitrator.
Imagine actually leading companies around Europe to participate
in the process of establishing the new rules and there were about
thirty councils, general councils of industrial companies and
financial institutions, and there wasn’t a vote taken about the issue
of establishing an emergency arbitrator, and there was probably
much in favour of not having an emergency arbitrator.
Based on that consideration in conjunction with the applicable
procedural possibilities given by the law we have decided not to
introduce an emergency arbitrator scheme. Obviously it needs
to have some connection with the countries, some connection
with the Austrian jurisdiction, in order to get such an order
enforced latter on. And I think also, that the European situation of
enforcement of Austrian interim measures is quite remarkable and
helpful in establishing powers with the court prior to an arbitral
process. What you usually get is an award by the court to establish
or to start an arbitration process, within two weeks, four weeks, or
maybe six weeks.
So this is a typical measure which is going before the arbitration,
as an efficient means to preserve evidence or to preserve assets
which otherwise would be gone.
ATHANASE RUTABINGWA (RWANDA): Thank you so much, yes!
For gender balance, let’s now take a question from Chief Tinuade.
Chief Tinuade Oyekunle from Nigeria: I have been listening to Mark
Appel and the whole team of presenters.I think speed is of essence
that is what we always say in arbitration. And that is probably
why we have these procedures of emergency arbitrators. And
particularly in some jurisdiction like mine where the courts are not
quick enough to grant interim measures. But then I am thinking of
the cost.
ICDR vice president said that nothing is paid, at the beginning
it’s part of the fees from the parties. There are people who said

REPORT
| 39
something is paid. I would like Mark to respond to the effect of
the payment of emergency arbitrator. Because it’s found to be
part of the fees, and the criticism we are getting in practice, in the
arbitration practice nowadays is that the cost is getting higher; and
when you put together the payment of the emergency arbitrator
as well as the arbitral tribunal when it is set up, how does it stand?
MARK E. APPEL (USA): The issue of cost is very important, yes,
because if you represent a client that is the first thing they ask you,
how much? How much time?
I think I talked about results of the cases listed on those forty five
cases, for what its worth, my guess is that many of those cases that
ended, considered an emergency order or award was rendered, so
under particular circumstance, i think that not only is cost negative
but it can also be positive; because anything that get a matter
resolved quickly and efficiently is probably good for the process
and for the parties. I think that is why there is an increase use of
inter-step clauses, or concurrent negotiation; whether mediation
or arbitration or concurrently mediation and arbitration clauses.
The idea is to get the matter resolved, and so it is a tool, does not
work in all cases, necessarily, the cost allocated could be by the
tribunal once it is constituted, first by the emergency arbitrator and
adopted by the fully constituted tribunal. Most of the proceedings
are decided by the arbitrators.
As our colleague said, time will tell whether these procedures
are appreciated and used and I would say, based on the ICDR
experience, they are not on alert but they seem to be used and
accepted and I think this is probably reflected in the increasing
number of institutions that have adopted these proceedings.
ATHANASE RUTABINGWA (RWANDA): Thank you very much, I
think I would request us to, in the interest of time to stop from here,
but I just want to ask my colleague professor to explain more about
the expert proceedings, who bears the costs. Because I am looking
at a scenario where parties have been notified to appear and then
bear the cost. At what level do we have the costs?

40 |
PROF. DATUK SUNDRA RAJOO (MALAYSIA): I think Mark has
explained that an emergency arbitrator rules on the cost, and
after that again, the cost would actually be put back on the
cost of arbitration eventually in the overall, when the tribunal is
constituted. So, at one point there is actually a cost if it stops there,
but if it continues it will actually be incorporated in the overall cost,
what we have to bear in mind is that an emergency arbitration is
part of the arbitration proceedings. It is part of the normal court
proceedings. It’s just natural that it will be incorporated-i think
that the way its done. So I think it’s a good technique, it is a useful
mechanism and of course I support that, but I think you need to
have a good judicial environment to support it, and that is more
important. Sometimes i keep on saying that it’s just a gimmick; we
must look at the real intent, and the court system and that is what
is more important.
ATHANASE RUTABINGWA (RWANDA): Thank you so much, so
this is not the end of the session but rather we will keep interacting
with them outside here to make sure that what you have not heard
here you can always get more knowledge on it, so thank you so
much.

REPORT
| 41
PanelTwo
MULTI-PARTY ARBITRATION
IN PRACTICE
This panel addressed issues such as who are the proper parties
to arbitration; consent to arbitrate; joinder of parties and
consolidation of arbitral proceedings; arbitral procedures where
multiple parties are involved. A Mock case on multiparty or multi
contract Arbitration followed aiming to meet the practical needs
of practitioners. The counsels pleaded a situation of jurisdictional
issues in multiparty case under institutional arbitration rules.
PANELISTS:
Egwuagu N. Emmanuel; Obla&co, Abuja-Nigeria;
Michael Burkart; Director of studies, Swiss-Arbitration Academy, Switzerland;
Dr. Urs Weber Stretcher; Attorney-at-law, partner, Wenger & Vieli AG, Switzerland;
CHAIR:
Dr. Eun Young Park*; Arbitrator from South Korea, is a partner with Kim & Chang;
* Dr Young also serves as the co-chair of the international arbitration & cross border Litigation
Group. He is onthe board of directors of CIAC and he is also the vice chair of IBA arbitration
committee and he teaches law at a law school in Korea.

42 |
Dr. Urs Weber-Stecher, Wenger & Vieli Ltd., Zurich, Switzerland
I. Introduction
The following text is the – slightly amended1
– speech I made at the
KIAC International Arbitration Conference 2014 on 26 May 2014.2
It was intended to prepare the ground for a mock case presented
by two participants from the Swiss Arbitration Academy3
and
initiate the subsequent discussion with Conference participants.
It is therefore not intended to be a contribution to the scientiﬁc
discussion on the topic of multi-party arbitration. Instead, it is
merely a summary of some practical aspects of arbitration cases
with multi-parties, in particular the joinder of third parties and the
consolidation of two or more arbitration proceedings involving
more than two parties.
The procedural features of joinder and consolidation are foreseen
in most institutional arbitration rules, but usually not in the national
lex arbitri; for example, the 12th Chapter of the Swiss Private
International Law as well as the Rwanda Law on Arbitration and
Conciliation in Commercial Matters of 2008 are silent on these
issues.
The following considerations will mainly be based on the Swiss
Rules of International Arbitration4
(hereinafter the “Swiss Rules”) as
1 The wording of the relevant provisions of the referenced Arbitration Rules as well as some
citations from court decisions have been added to the text of the speech.
2 See http://www.kiac.org.rw/spip.php?article60.
3 The Swiss Arbitration Academy (SAA) as well as the Universities of Lucerne and Neuchâtel
are jointly oﬀering a post-graduate course in arbitration (CAS in Arbitration). This program
is a unique combination of an academic education and practical hands-on training with
renowned international practitioners. Read more: www.swiss-arbitration-academy.ch
4 The Swiss Rules of International Arbitration of the Swiss Chambers’ Arbitration Institution
(SCAI): https://www.swissarbitration.org/sa/en/rules.php.
PRESENTATION ON MULTI-PARTY
ARBITRATION IN PRACTICE

REPORT
| 43
well as the Arbitration Rules of the Kigali International Arbitration
Centre (KIAC)5
(hereinafter the “KIAC Rules”).
II. Joinder of Third Parties
Joinder of third parties means the situation where a third person
is permitted to intervene (intervention) or ordered to participate
in the proceedings through the request of one of the parties to
pending arbitral proceedings (extension).
1. The Basic Problem with the Joinder of Third Parties
The extension of arbitration proceedings to third parties who
did not sign the arbitration agreements may clash with some
fundamental principles relevant to arbitration.
First, they clash with the principle “privity of contract”: According
to this principle, a person cannot acquire rights or be subject to
liabilities under a contract to which he or she is not a party. In
connection with procedural rights, this means in particular that a
person cannot be deprived of his or her right to resort to state
court litigation.
Second, arbitration is consensual in nature because the arbitral
tribunal derives its jurisdictional power from the parties’ consent.
In connection with the intervention by a third party, this is less
problematic because the consent of the third party to join the
arbitral proceedings is given. Consequently, in this respect, the
threshold to extend the arbitration clause to this third party may
be lower than in cases of extension, where the consent of the third
party is usually not given. Therefore, it may only be forced to join
the arbitration in exceptional circumstances.
Third, the form of the arbitration agreement is an important aspect,
which becomes evident in the term “extension to non-signatories”.
The conservative approach, which requires an exchange of
written letters to adhere to the binding formal requirements of
an arbitration clause, originates in the wording of Article II of the
5 The Kigali International Arbitration Centre: http://www.kiac.org.rw/spip.php?rubrique22.

44 |
New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards of 1958. A more liberal approach takes the
technical developments into consideration. A good example of this
is Article 9 of the Rwanda Law on Arbitration and Conciliation in
Commercial Matters of 2008 (paragraph 3):
“An arbitration agreement is in writing if its content is recorded in
any form, whether or not the arbitration agreement or contract
has been concluded orally, in a written form basing on the conduct
of the parties themselves, or based on any other means. The
requirement that an arbitration agreement be in writing is met by
an electronic communication if the information contained therein
is accessible so as to be used for subsequent reference”;
In my view, it should be suﬃcient if it meets the requirements of
the applicable lex arbitri. Also, the Swiss Federal Court supports
a liberal approach since it held that once the existence of an
arbitration clause can be approved, it is admissible to consider
the extension to a non-signatory.6
In other words, the fact that the
clause had not been signed by the third party was not considered
a formal obstacle to the extension of the arbitration clause.
2. Procedural Framework in the Swiss Rules and the KIAC
Rules
Article 4(2) of the Swiss Rules on joinder reads as follows:
“Where one or more third persons request to participate in arbitral
proceedings already pending under these Rules or where a party
to pending arbitral proceedings under these Rules requests that
one or more third persons participate in the arbitration, the arbitral
tribunal shall decide on such request, after consulting with all of
the parties, including the person or persons to be joined, taking
into account all relevant circumstances”.
Article 8 of the KIAC Rules on “Joinder of Additional Parties” reads
as follows:
6 Decision 4P.115/2003 of 16 October 2003, DFT 129 III 727.

REPORT
| 45
“A party wishing to join an additional party to the arbitration shall
submit its request for arbitration against the additional party (the
“Request for Joinder”) to the Secretariat. The date on which the
Request for Joinder is received by the Secretariat shall, for all
purposes, be deemed to be the date of the commencement of
arbitration against the additional party. Any such joinder shall be
subject to the provisions of Article 7 para 3-6 and 8. No additional
party may be joined after the confirmation or appointment of any
arbitrator, unless all parties including the additional party otherwise
agree. The Secretariat may fix a time limit for the submission of a
Request for Joinder.
The Request for Joinder shall contain the following information:
1 The case reference of the existing arbitration;
2 The name in full, description, address and other contact details
of each of the parties, including the additional party; and
3 The information specified in Article 5 para 2, sub paragraphs
(3), (4), (5), (6).
The party filing the Request for Joinder may submit therewith such
other documents or information as it considers appropriate or as
may contribute to the efficient resolution of the dispute.
The provisions of Article 5 para 4, 5 and 7 shall apply, mutatis
mutandis, to the Request for Joinder.
The additional party shall submit an Answer in accordance, mutatis
mutandis, with the provisions of Articles 6 para 1 to 4”.7
It is important to note that these provisions do not create a
jurisdictional basis over the third person or persons to be joined;
they only set the procedural framework for doing so.
7 This provision is very similar to the one of Article 7 of the Arbitration and ADR Rules of the
International Chamber of Commerce (ICC) of 2012; www.iccwbo.org.

46 |
Under Article 8 in conjunction with Article 7(4) KIAC Rules, it is
suﬃcient for the Centre to continue the arbitration if an arbitration
agreement exists that “prima facie” binds all parties. However,
the provision does not specify what aspects are to be taken into
consideration when determining whether all parties (i.e. also non-
signatories) are bound by the arbitration agreement.
According to Article 4(2) Swiss Rules, the arbitral tribunal shall take
“all relevant circumstances” into account and shall “consult with all
of the parties”. However, this does not mean that the consent of all
parties is required.
3. Competence to decide on Joinder
Under the KIAC Rules, the request for joinder must be sent to the
Secretariat. It is then up to the Secretariat to decide whether it
wants to refer the matter either to the Centre or directly to the
arbitral tribunal. The general rule is that a matter will be referred to
the Centre for a “prima facie” decision on jurisdiction and, in cases
involving non-signatories or multiple parties or multiple arbitration
agreements, the complexity of the issues to be decided usually
also requires the involvement of the Centre.8
According to the Swiss Rules, the competence to decide on the
joinder lies with the arbitral tribunal9
and not with the Arbitration
Court of the SCAI.
So, we see that two approaches are applied, either the institution
or the arbitral tribunal itself may decide on the extension of an
arbitration clause to non-signatories.
4. Principles on which a Joinder may be based
We have seen that neither the national laws (lex arbitri) nor the
arbitration rules of the arbitration institutions provide criteria for
the decision on joinder. This leaves the competent body with the
8 Cf. Article 7(4) KIAC Rules.
9 Cf. Article 4(2) Swiss Rules.

REPORT
| 47
principles developed by case law and commentators. Some of the
most important principles on which arbitration institutions, arbitral
tribunals and state courts have decided to extend the scope of the
arbitration agreement to third parties are the following:
• Group of companies
• Piercing the corporate veil
• Alter ego
• Estoppel
• Agency
• Assignment of rights
• Assumption of debts
• Third-party beneﬁciary
The starting point for the analysis of the decision on joinder is the
law applicable to the arbitration agreement,10
or for those doctrines
elaborated in connection with the corporate personality, the law at
the place of incorporation.
The principles will be analysed below as examples based on
landmark cases.
5. Two Examples in Case Law
(a) Dow Chemical versus Isover Saint Gobain11
Facts: In 1965, DOW CHEMICAL (Venezuela) entered into a
contract with a French Company, whose rights and obligations
were subsequently assigned to ISOVER SAINT GOBAIN for the
distribution of the thermal isolation equipment “Roofmate” in
France.
DOW CHEMICAL (Venezuela) itself subsequently assigned the
contract to the Swiss DOW CHEMICAL A.G. (Claimant no. 3), a
10 CF. Art. 178(2) Swiss Private International Law Act.
11 ICC Case No. 4131: 1. Dow Chemical France; 2. The Dow Chemical Company (USA); 3. Dow
Chemical AG (Switzerland); 4. Dow Chemical Europe (Switzerland) versus Isover Saint
Gobain (France), Interim Award of 23 September 1982; 110 Journal du Droit International,
1983, pp. 899-905.

48 |
subsidiary of the U.S. DOW CHEMICAL COMPANY (Claimant no.
2).
In 1968, a second distribution agreement was entered into by
DOW CHEMICAL EUROPE (Claimant no. 4), a subsidiary of DOW
CHEMICAL A.G., with three other companies (including the French
company) whose rights and obligations were later assigned
to ISOVER SAINT GOBAIN (Defendant) for the distribution of
essentially the same products in France.
Both the 1965 and the 1968 agreements contained ICC arbitration
clauses.
On the basis of these arbitration clauses contained in the contracts
with the Swiss DOW CHEMICAL A.G. and DOW CHEMICAL
EUROPE (Claimants no. 3 and 4), the four Claimants instituted
arbitral proceedings against Isover, alleging that Isover alone was
liable for damages resulting from the use of Roofmate in France.
Considerations by the arbitral tribunal: “That it thus appears, as
was the case with respect to the conclusion and performance
of the distribution agreements, that DOW CHEMICAL FRANCE
[Claimant 1, which was not party to the arbitration agreement]
played an essential role in the termination of the 1968 contract …;
… all of these factors permit the conclusion that DOW CHEMICAL
FRANCE was a party to each of these contracts and, consequently,
to the arbitration clauses they contained.
That the same conclusion should be reached with respect to
DOW CHEMICAL COMPANY (USA) [Claimant 2, again not party
to the arbitration agreements] by reason of its ownership of the
trademarks under which the products were marketed and its
absolute control over those of its subsidiaries that were directly
involved, or could have become involved under the contracts, in the
conclusion, performance, or termination of the litigious distribution
agreements”.
Conclusions of the arbitral tribunal (on the doctrine of “Group of
Companies”): “Considering that it is indisputable — and in fact

REPORT
| 49
not disputed — that DOW CHEMICAL COMPANY (USA) has and
exercises absolute control over its subsidiaries having either signed
the relevant contracts or, like DOW CHEMICAL FRANCE, eﬀectively
and individually participated in their conclusion, their performance,
and their termination.
Considering that irrespective of the distinct juridical identity of
each of its members, a group of companies constitutes one and
the same economic reality (une realité économique unique) of
which the arbitral tribunal should take account when it rules on its
own jurisdiction (subject to Article 13 (1955 version) or Article 8
(1975 version) of the ICC Rules)”.
Accordingly, Isover, was not successful in resisting the joinder of
claimants1and2.Sinceithasgivenitsbasicagreementtoarbitration
by signing the arbitration agreements, the open question was only
whether it could be forced to accept two additional parties as
claimants, which have not signed the arbitration agreement. For
the reasons stated previously, the arbitral tribunal decided that this
was the case. The interim award of the arbitral tribunal was upheld
by the Paris Court of Appeals.
While some state courts apply the doctrine of “Group of
Companies” (e.g. in France, Brazil, Spain), the courts of other states
are reluctant or even against the application of the doctrine (e.g.
US, UK, Switzerland). In Switzerland, most legal commentators
have also been sceptical or negative.
(b) Prest versus Petrodel Resources Ltd12
Background Facts: Michael and Yasmin Prest married in 1993,
but the marriage ended in 2008. Mr. Prest was a wealthy oil
trader who operated a number of companies over which he had
complete control. The companies had legal title to real estate
within the UK, including the couple’s matrimonial home. In the
divorce proceedings, Mrs. Prest obtained an order from the courts
requiring her husband to pay her a lump sum of £7.5 million plus
12 UK Supreme Court, Prest vs. Petrodel Resources Ltd. (2013), UKSC 34.

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