Emergency Arbitration in the Investor-State Dispute Settlement Cases: Challenges and Perspectives for Arbitration Institutions

Abstract

During the past decade, the arbitration institutions experienced growing demand for adequate procedures and standards that meet the requirements of the investor-state dispute settlement (ISDS). The emergency arbitration (EA) is gradually becoming one of such requirements as the parties often experience an urgent need of interim relief that precedes the constitution of the arbitral tribunal and commencement of the regular arbitration proceedings. In order to meet this demand, numerous arbitration institutions have introduced emergency arbitration procedures under their arbitration rules. While the arbitration institutions have already accumulated certain experience in applying emergency arbitration in commercial cases, the first ISDS EA cases under the bilateral investment treaties (BITs) have started to emerge only in 2014. The paper provides a critical analysis on the suitability of the current emergency arbitration rules to the peculiarities of ISDS including issues such as timing, applicability of the “cooling-off clauses” under the relevant BITs, substantive criteria for granting interim relief, and the enforceability of the EA decisions. The research builds on the study of the first EA decisions rendered in ISDS cases.