Transnational Construction Arbitration

Renato Nazzini

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CHAPTER 15 Emergency arbitration and the interplay with other pre-arbitral mechanisms

Introduction

15.1 During the past decade, so-called ‘emergency arbitration’ has developed across the globe to provide expedited urgent arbitral interim relief1 to parties who have agreed to arbitrate their dispute pursuant to an arbitral institution’s rules that include this procedure. Arbitral institutions have provided for emergency arbitration in their rules to fill the gap between the time when the relief is needed and when the ‘regular’ arbitral tribunal can be constituted. This allows parties to avoid seeking urgently needed relief from a national court, which may provide a less attractive venue for parties who have agreed to arbitrate. The development of emergency arbitration has contributed to the autonomy and effectiveness of arbitration. 15.2 This article considers the applicability and effectiveness of emergency arbitration and explores issues that may arise when the parties have agreed to pre-arbitral dispute resolution mechanisms. When the dispute resolution agreement contains provisions for cooling-off periods, negotiations, mediation, or dispute boards to precede arbitration, these pre-arbitral mechanisms may affect the right to proceed to arbitrate. It is unclear to what extent, if at all, such pre-arbitral mechanisms may affect emergency arbitration procedures. The procedures for seeking interim relief pose issues of the relationships between emergency arbitrators, the regular arbitral tribunal, national courts, and other pre-arbitral mechanisms such as mediation and dispute boards. This is a relatively new and evolving area of practice, which has not been the subject of serious study and limited available practice. This chapter identifies and introduces some of the issues, which deserve greater study. 15.3 The background and development of emergency arbitration, together with an overview of the procedure, will first be noted to provide the foundation for identifying and analysing the issues relating to pre-arbitral relief. The nature and legal basis of emergency arbitration remains a controversial topic despite the general acceptance of the procedure in practice. The legal effects and enforceability of an emergency arbitration decision generate uncertainties, which have both academic and practical significance. These issues play into the analysis of the interplay between various pre-arbitral mechanisms. As the practice of emergency arbitration grows, its relationship to other pre-arbitral relief will raise issues in the developing practice and theory.

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The development of emergency arbitration

15.4 Emergency arbitration procedures first appeared on the arbitration scene only about ten years ago, but despite this relatively short existence, the procedures have become a standard feature of most arbitral institutes’ rules. Emergency arbitration allows parties to quickly seek interim measures within the privacy of the arbitral process, thus enhancing the autonomy and effectiveness of arbitration and enabling arbitration to provide a ‘one-stop’ dispute process. Emergency arbitration builds upon the evolution of interim measures to provide parties with relief that ensures the efficacy and hence autonomy of the arbitral process. Today arbitral interim measures are largely integrated into the procedural and tactical landscape of arbitration. 15.5 Prior to the arrival of emergency arbitration, the arbitration community sought to enhance arbitration’s autonomy, effectiveness and attractiveness by equipping arbitral tribunals with the ability to render interim measures and to facilitate court recognition and enforcement of such measures. The 2006 amendments to the UNCITRAL Model Law on International Commercial Arbitration (Model Law) focused primarily on strengthening arbitral interim measures.2 The work to revise the 1985 Model Law general provision for interim measures began in 2000 and finally after six years of contentious debates, the UNCITRAL Working Group arrived at highly detailed revised provision, Article 17, which was approved by the Commission.3 The new Article 17 provides for the types of interim measures, the conditions for granting such measures, and other relevant provisions, and importantly provides for court recognition and enforcement of interim orders made by arbitral tribunals.4 The Model Law has had significant impact on the development of arbitral interim measures, including in countries that have traditionally not recognised the power of tribunals to order interim measures. 15.6 However, before the commencement of arbitration and during the time needed to constitute the arbitral tribunal – which typically can take between two and fourth months following the commencement of arbitral proceedings – there exists a risk that the arbitration may be frustrated as the situation for an allegedly aggrieved party may significantly deteriorate. In most jurisdictions, during this period, parties could seek interim relief from an appropriate court.5 However, in some cases, national courts may not provide an attractive alternative for a number of factors. A party may not want to use the court that will have jurisdiction when the party perceives this court as an ‘unfriendly’ forum. Even if this is not the case, the courts will use national language and national civil procedures, which may require using local counsel.6 The national judges may not have

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the specialised legal or technical knowledge that is relevant to the dispute. The national court forum may have limited opportunities to ensure the privacy of the proceedings. In some jurisdictions, the national courts may not offer a sufficiently expedited process for obtaining urgent measures. 15.7 Arbitral institutes responded to the needs of users by providing a new a process to obtain needed early interim relief, typically called emergency arbitration. The International Centre for Dispute Resolution (ICDR)7 was the first institute to launch emergency arbitration when it introduced the procedures in its rules in 2006.8 Prior to this, in 1990, the International Chamber of Commerce (ICC) introduced an innovative Pre-Arbitral Referee Procedure, which was seldom used, probably due to its ‘opt-in’ nature. In an early decision under this procedure, the Paris Court of Appeals held that a decision made by a prearbitral referee in the ICC procedure was not an enforceable arbitral award, finding that the procedure was merely contractual and the referee was not an arbitrator.9 The Netherlands Arbitration Institute (NAI) added Summary Arbitral Proceedings to its rules in 2001, but this was not an emergency arbitration procedure, but rather an expedited procedure. 15.8 The Arbitration Institute of the Stockholm Chamber of Commerce (SCC) launched a more robust approach to emergency arbitration on January 1, 2010, which provided for seeking emergency relief even prior to the commencement of arbitration.10 The Singapore International Arbitration Centre (SIAC) followed the SCC six months later by enacting nearly identical emergency arbitration rules.11 The ICC introduced its emergency arbitration rules in 201212 and the London Court of International Arbitration (LCIA) in 2014.13 Emergency arbitration procedures have now spread around the globe, appearing as part of the regulatory framework of many arbitral institutes.

An overview of emergency arbitration procedures

15.9 In the past few years, nearly every arbitral institution that has revised its rules has included provisions for emergency arbitration. While the time periods and details of emergency arbitration procedures vary between institutional rules, the procedures all

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provide a highly expedited process for obtaining interim measures that precede the actual arbitration. In all of the emergency arbitration regimes, the emergency arbitrator is a sole arbitrator appointed by the administering arbitral institute pursuant to its emergency arbitration rules. The emergency arbitrator has a time-limited mandate and, unless the parties agree otherwise, may not be appointed as a member of the tribunal in the subsequent arbitration. Any relief ordered by an emergency arbitrator will be limited in time and will have no binding effect on the decisions of the regular arbitral tribunal constituted in the subsequent arbitration. The limitation on the legal effect of the emergency decision will be discussed in more detail below. 15.10 Some of the variance between the various emergency arbitration rules may be significant for parties. For example, under some Rules, such as the SCC14 and the ICC,15 the emergency arbitration procedure may be obtained prior to filing a request for arbitration but not after the arbitration file has been transmitted to the regular arbitral tribunal. Some institutions’ emergency arbitrator provisions require that a party files the request for arbitration concurrently or before the request for an emergency arbitrator to be appointed.16 Other varying factors include the period for appointing the emergency arbitrator and time allowed for making the decision, the form of the decision, and the fees and cost allocations. The SCC Rules provide for a highly expedited procedure with the Board seeking to appoint the emergency arbitrator within one day of the request and the decision to be rendered within five days of the appointment, unless the Board extends the period based on a reasoned request from the emergency arbitrator.17 The practice of the SCC demonstrates that these time limits are typically met.18 The ICC, LCIA, and SIAC procedures provide for 14 to 15 days for the emergency arbitrator to render the decision, unless an extension is granted.19 All of the emergency arbitrator regimes also have expedited time frames for challenging an emergency arbitrator. 15.11 There are some differences in the scope and applicability of the emergency provisions. For example, the ICC emergency arbitrator procedure is more restrictive than the SCC procedure.20 The ICC procedure is only available when the arbitration agreement was entered into after the effective date for the new rules, while the SCC procedure applies retroactively.21 Additionally, the ICC procedure is only available for parties that are

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signatories or successors to the arbitration agreement, thus excluding non-signatories who are not successors. The ICC Rules also excludes the procedure in treaty-based arbitration, while the SCC Rules may be and indeed have been used in some investment cases. As will be further discussed below, the ICC Rules specifically exclude the applicability of the emergency arbitration procedure when the parties have agreed to other pre-arbitral procedures that provide for conservatory, interim or similar measures.22 It should also be noted that the ICC Rules, unlike other approaches such as the SCC and SIAC, do not provide for an emergency arbitrator decision to take the form of an award, but only allow for it to be an order.23 15.12 Despite the variance of approaches, emergency arbitration provisions have become a common feature of institutional arbitration, although lacking in ad hoc arbitration, notably when conducted pursuant to the UNCITRAL Rules. An interesting question, which will not be pursued here, is whether parties who chose to use the UNCITRAL Rules with the administration of an Arbitration Institute, could also agree in their arbitration agreement to use the Emergency Arbitration procedures of the administering arbitral institute.

The legal nature and effects of emergency arbitration

15.13 The legal nature of emergency arbitration presents an unsettled issue, as does the status of the emergency arbitrator and the legal nature and effects of the decision. It is unclear whether emergency arbitration constitutes a separate, autonomous proceeding or if it is part of the ‘regular’ arbitration proceeding. When arbitral institution rules provide for emergency arbitration procedures, the parties have agreed to the procedure by agreeing to arbitrate pursuant to the rules, unless they specifically ‘opt out’ of the emergency arbitration procedures.24 The agreement to use the selected Rules has a contractual basis. Generally, an agreement to arbitrate is a contract with procedural and jurisdictional effects, namely the agreement to arbitrate and the agreement not to bring the claims to court litigation; the so-called positive and negative effects of the arbitration agreement.25 But the agreement to use particular rules in the arbitration may be seen as purely contractual, or as a procedural agreement by the parties, or as a hybrid agreement that has both contractual and procedural elements. The characterisation of the agreement to use the arbitral rules will affect the analysis of the legal effects of the agreement. 15.14 The emergency arbitrator derives its power from the parties’ agreement to arbitrate under arbitral rules that provide for emergency arbitration, while the ‘regular’ arbitral tribunal derives its power from the agreement to arbitrate. Parties delegate their

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party autonomy to the arbitral institution whose rules they have chosen. If these rules provide for emergency arbitration, then by choosing to arbitrate under these rules, parties are deemed to have agreed to these provisions.26 There have been discussions on whether an emergency arbitrator is an arbitrator at all and if the power of the emergency arbitrator exists only in the contractual obligations between the parties. Webster and Buhler argue that, despite the limited role of the emergency arbitrator, it ‘has all of the attributes of an arbitrator and for all purposes should be treated as such.’27 They note that despite the provisional nature of the emergency decision and the limited mandate of the emergency arbitrator – which does not empower the emergency arbitrator to make decisions on the merits of the dispute – the decision of the emergency arbitrator qualifies as a judicial decision.28 They conclude that the emergency arbitrator order should be assimilated with an interim relief order issued by a regular arbitral tribunal.29 15.15 Regular arbitral tribunals may benefit from national arbitration laws (lex arbitri) that recognise and empower the arbitrators. Recently, legislation in Singapore, Hong Kong, and South Korea has recognised emergency arbitration and more jurisdictions may follow.30 Given the broad acceptance of emergency arbitration by the arbitration community, the controversy about the status of the emergency arbitrator may become increasingly less relevant, but the underlying theoretical and analytical issues remain. 15.16 The legal nature of emergency arbitration may be determined by the enforceability of decisions made by emergency arbitrators; in other words, whether national courts will enforce emergency arbitrator decisions as an arbitral interim measure or as an arbitral award. Most emergency arbitration rules provide that the decision may be made in the form of an order or an award, as is similarly provided for interim measures decided by the regular arbitral tribunal. It is controversial if an interim measure in the form of an award has the necessary finality to be enforced under the New York Convention. It is far more controversial if an emergency arbitration decision could be enforced as an award under the New York Convention. The New York Convention does not define an award and the label ‘award’ on the decision is not decisive; national courts may determine what constitutes an award when determining whether to recognise and enforce the alleged award.

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15.17 There have been a couple of cases where an emergency arbitrator decision was enforced by a court.31 Recently, a Ukrainian court ordered the recognition and enforcement of an SCC emergency arbitration award in an investment case.32 This was particularly noteworthy because the SCC emergency arbitration rules, similar to some of the other regimes, provide that while the emergency arbitrator’s decision is binding upon the parties, it does not have any binding effect on the subsequent tribunal.33 Upon the reasoned request of a party, the emergency arbitrator may amend or revoke the decision.34 Notably, a decision of an emergency arbitrator will cease to have any legal effect upon certain events occurring, namely when the emergency arbitrator or the regular arbitral tribunal so decides, when the regular arbitral tribunal makes a final award, when the main arbitration is not commenced within 30 days from the date of the emergency decision, or when the case is not referred to a regular arbitral tribunal within 90 days of the date of the emergency decision.35 15.18 A few courts have enforced the decisions of emergency arbitrators, although the nature and enforceability of emergency arbitrator decisions remains controversial.36 In the 2006 amendments to the interim measure provisions of the UNCITRAL Model Law, a new provision was introduced, which provides for the recognition and enforcement of arbitral interim orders.37 Those jurisdictions that have adopted this approach may enforce an emergency arbitrator order if the jurisdiction considers such an emergency arbitrator decision to constitute such an interim measure order. If an emergency arbitrator decision falls within the categorisation of an arbitral interim measure, then it may be enforceable as such an order. However, the limited time period for the existence of an emergency arbitrator order may affect the enforceability. 15.19 But even if the enforcement of an emergency arbitrator decision may be uncertain, the procedure may nonetheless have benefits. The regular tribunal may extend the emergency decision, turning it into an order or an interim award. One example of an emergency arbitration order becoming an interim award issued by the regular tribunal is the ‘Sauber case’ involving an emergency arbitration under the Swiss rules, seated in Geneva.38 In this case, a Formula One driver, Mr van der Garde, successfully obtained an emergency arbitrator order prohibiting Sauber from taking any action that would deprive the driver from participating in the 2015 Formula One season. Three days after the regular tribunal rendered the partial award, the driver brought enforcement proceedings in Australia, just shortly before the start of a race. While the expedited appeal of

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the enforcement was pending, just a day before the start of the Melbourne Grand Prix, the parties reached a settlement.39 15.20 Reportedly, parties often follow the decisions of the emergency arbitrators without court enforcement in order to avoid additional costs and to show their good faith cooperation with the arbitral process. Indeed, most emergency arbitration rules provide that the decision of the emergency arbitrator is binding upon the parties. There may also be increased incentives to settle a case once the parties have received a preliminary assessment of the case by an emergency arbitrator and have had an opportunity to better consider the opposing party’s position. Anecdotally, there are reports of parties settling the dispute following an emergency arbitrator decision that has contained detailed convincing reasoning indicating that one of the parties is likely to prevail on the merits of the case. However, it should be noted the decision of the emergency arbitrator is based on a limited evidentiary record and has been reached after a highly expedited procedure. Furthermore, the conditions for granting emergency relief are not settled and some emergency arbitrators may not require a high standard of the likelihood of success on the merits when considering a request for emergency relief. Importantly, the decision of the emergency arbitrator is not binding on the subsequent regular arbitral tribunal.

Emergency arbitration and other pre-arbitral relief

15.21 Unsettled issues may arise relating to obtaining emergency arbitration relief when the parties have agreed to other pre-arbitral steps such as cooling-off periods, mediation, dispute boards, and other proceedings that may provide interim relief. Increasingly, parties enter into dispute resolution clauses that provide for more than one dispute resolution method. For example, the clauses may provide that the parties will first attempt to resolve the dispute through mediation and, if this is unsuccessful, then by arbitration; these clauses are often referred to as ‘med-arb’ clauses. Clauses may provide for amicable settlement discussions, more or less structured negotiations, expert evaluations, dispute boards, or other dispute resolution procedures that will be used prior to final and binding arbitration. These clauses are often referred to as ‘multi-step clauses’, ‘multi-tier clauses’, or ‘escalation clauses’. Some agreements to arbitrate, notably in treaty-based investment arbitration, provide for cooling-off periods before arbitration commences. 15.22 There has been considerable commentary and case law relating to whether contractually agreed pre-arbitration dispute resolution mechanisms are enforceable and if so whether they constitute a condition precedent to arbitration.40 If such mechanisms constitute an enforceable condition precedent, the pre-condition could be characterised either as a jurisdictional or an admissibility issue.41 This characterisation, which has significant legal and practical effects, requires interpreting the parties’ contractual agreement and considering the procedural nature of the alleged pre-conditions to arbitration. If the

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objection to arbitration is based on jurisdiction, then while competence-competence will allow the arbitral tribunal to make a determination on its jurisdiction, this decision will be reviewable by a court in challenge or enforcement proceedings. If the objection is viewed as an admissibility issue, then it is a matter of the merits for the arbitral tribunal to finally decide without later court review on the decision.42 These issues in the context of the regular arbitration will not be further discussed here, as the focus of this chapter is on how such mechanisms may affect emergency arbitration proceedings. 15.23 However, the theoretical and analytical approach to conditions precedent to arbitration might (or might not) be transferrable to analysing pre-arbitral procedures impact on emergency arbitration proceedings. If emergency arbitration constitutes a part of the regular arbitration, rather than an independent proceeding, then theoretically the analysis of the character and effects of conditions precedent to arbitration could be applied to emergency arbitration. If, however, emergency arbitration should be characterised as an independent, autonomous proceeding, then the conditions precedent analysis relating to regular arbitration arguably should not be applied to emergency arbitration. If emergency arbitration is viewed as a form of arbitral interim measures and thus integrated into the regular arbitration process, should it be treated analytically different than interim measures requested from the regular arbitral tribunal? The legal status of an emergency arbitrator and the legal status of the decisions made by the emergency arbitrator could also affect the analysis of the impact of conditions-precedent to arbitration on the availability of emergency arbitration. To make matters more complex, choice-of-law issues should also be considered. A full analysis of these issues is beyond the scope of this chapter, but the issues should be borne in mind.43

Dispute boards

15.24 In construction and large infra-structure projects, it is common to provide for the use of dispute boards, either so-called ‘standing’ or ‘ad hoc’, the former set-up at the outset of the project and the latter created when a dispute arises. The dispute adjudication boards (DABs) are empowered to make a ‘binding’ decision on a dispute. However, the DAB decision is not ‘final’ as the dispute may be subsequently referred to arbitration. The International Federation of Consulting Engineers (FIDIC) suite of contracts contain ‘clause 20’, which provides for dispute boards as part of the dispute resolution process.44 Under the FIDIC ‘Red Book’, which is commonly used in construction projects, once a dispute is referred to a DAB, a binding decision must be made within 84 days. A dissatisfied party may file a formal notice of dissatisfaction, which triggers amicable settlement negotiations for up to 56 days. Following this process, if the dispute has not been

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settled, the dissatisfied party may commence ICC arbitration.45 This pre-arbitral process must be complied with before referring a dispute to arbitration for a final decision.46 15.25 There are other similar dispute board rules that parties may agree to use. The Chartered Institute of Arbitrators introduced dispute board rules in August, 2014 providing for non-binding dispute review boards (DRBs)47 and binding dispute adjudication boards (DABs).48 The ICC introduced new rules for dispute board procedures on October 1, 2015,49 providing for dispute review boards (DRBs),50 dispute adjudication boards (DABs),51 and combined dispute boards (CDBs).52 15.26 In a Swiss case, the court was faced with determining whether the contractor could bring arbitration proceedings to recover payment against the employer although the DAB procedure had not been completed.53 The parties’ contract contained a FIDIC clause that provided for a DAB, followed by amiable settlement efforts should a party be dissatisfied, and subsequent arbitration. The contractor approached the employer to constitute the DAB but, following lengthy delays in the appointment process, the contractor commenced ICC arbitration. The employer objected to the jurisdiction of the arbitrators because the pre-arbitral DAB process had not been completed. The arbitrators rejected the jurisdictional objection and issued a majority partial award.54 The court found that the DAB process was a contractual mandatory procedure that must be completed before commencing arbitration.55 However, the court found that under Swiss law, the parties had a duty to cooperate in good faith in the DAB process and the employer had delayed the constitution of the DAB. The court found that the employer could not undermine the DAB process and then rely upon the failure to constitute the DAB to object to jurisdiction in the arbitration. Consequently, the arbitrators had jurisdiction. 15.27 The Swiss case can be compared with a recent English case, where the court found that the DAB procedures were mandatory.56 In the English case, the dispute clause provided for a DAB process followed by court litigation. A party brought court action without first attempting the DAB process. The court found that the contractual pre-litigation DAB process must be complied with prior to initiating the court action. 15.28 Article 29(6)(c) of the ICC emergency arbitration rules specifically excludes the applicability of the emergency procedures when the parties have agreed to other pre-arbitral procedures that provide for the granting of conservatory, interim or similar measures.57 The ICC Secretariat’s Guide notes that agreeing to such other pre-arbitral procedures

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‘amounts to an implied opt-out’.58 It further notes that this exclusion will apply when the parties have agreed ‘to use a dispute board that may issue interim measures’.59 Dispute adjudication boards (DABs) would fit within this exclusion as these boards make binding decisions on the parties that have the effects of interim measures. 15.29 The exception for dispute boards was created in response to FIDIC concerns that the emergency arbitration procedures would undermine the clause 20 provisions for dispute boards followed by arbitration.60 However, the ICC exception is not limited to FIDIC dispute boards and could be applied to any dispute board that could provide interim relief, which would be most, if not all, DABs. Voser and Boog comment that this exception should be applied restrictively in order not to deprive contracting parties the benefit of emergency arbitration.61 Webster and Buhler note that this ICC exception should be limited to DABs that are already in place at the time of filing an application for emergency arbitration.62 They note that although the parties may have agreed to a standing DAB in their contract, the parties may have failed to appoint the DAB and the mere contract reference to a DAB should not be deemed an exclusion under the ICC Rule.63 15.30 The appointment process to establish a DAB can take time. Often in a dispute arising in the context of a construction or infra-structure project, one party will seek payment and the other will want to prevent it. A party may want to quickly prevent the calling of an ‘on-demand bond’ or a performance bank guarantee. Under the SIAC emergency arbitration rules there have been several cases where a party has successfully obtained an emergency arbitration order to prevent the calling of the on-demand bond or performance bank guarantee.64 Importantly, SIAC and other rules such as the SCC and LCIA do not have an exception like the ICC Rules, and thus do not limit the availability of emergency arbitration when the parties have agreed to other pre-arbitral relief. 15.31 DABs do have the power to make orders to prevent the payment of a demand bond or performance guarantee,65 but the DAB process may not be sufficiently nimble to address the issue in a timely manner, particularly if the DAB is not yet constituted when the issue arises. When parties have agreed to a pre-arbitral DAB procedure prior to arbitration under other rules than the ICC, there may be an issue as to whether the failure to initiate or complete the DAB process may be a jurisdictional or admissibility objection to the emergency arbitration procedure. The analysis of this issue will implicate the characterisation of the objection and will require interpreting the dispute resolution agreement. It may also depend on the type of relief sought in the emergency arbitration.

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15.32 Generally, if the parties have agreed to emergency arbitration by agreeing to arbitral rules and these rules do not have an exception for other pre-arbitral procedures, the parties should be able to apply for emergency arbitration in urgent situations where relief is needed to maintain the status quo or to prevent imminent serious harm that cannot later be compensated. This however raises the issue of whether the party seeking the emergency relief will be able to commence the regular arbitration concurrently or within the time period as prescribed by the applicable emergency arbitration rules. This is an issue that was raised in the first ICC emergency arbitration application where the parties had agreed to a ‘med-arb’ clause, which will be discussed below.

Contractually agreed negotiations, mediation, and cooling-off periods

15.33 The first ICC emergency arbitrator application presented the issue of the contractual obligation to mediate before going to arbitration. The parties had agreed to a ‘med-arb’ clause that provided that arbitration could be commenced if the dispute was not resolved 60 days after the request for ADR pursuant to the ICC Arbitration Rules. The claimant filed a request for ADR at the same time it filed the request for an emergency arbitrator, requesting an asset freeze against the respondent. The respondent raised jurisdictional objections to the emergency proceedings. The ICC reports the case as follows:66

The responding party argued that as the 60-day interval had not elapsed, the parties could not yet be considered to have committed themselves to arbitration. Hence the emergency arbitrator was not entitled to take jurisdiction. The responding party also pointed out that the Application was premature as a Request for Arbitration could not be filed within the mandatory ten days without breaching the 60-day interval set by the multi-tiered clause. The emergency arbitrator dismissed the objection and upheld his jurisdiction. He observed, inter alia, that to hold otherwise would deprive the parties of the possibility of obtaining interim relief when it was most needed (after the dispute had arisen but before the arbitral tribunal was constituted). He also noted that the emergency arbitrator proceedings constitute a largely separate process which should be able to take place notwithstanding the requirement to wait 60 days before commencing arbitration proceedings. However, he added that no Request for Arbitration could be filed during those 60 days, which led him to point out the tension between the waiting period of 60 days between the Request for ADR and the Request for Arbitration laid down in the parties’ contract and the need to submit a Request for Arbitration within ten days of the Application laid down in the Rules. In the end, the emergency arbitrator concluded that the tension could be resolved pursuant to Article 1(6) of the Emergency Arbitrator Rules, which enables the emergency arbitrator to extend the 10-day time limit for filing a Request for Arbitration. Ultimately, the emergency arbitrator left the question of the timing of the Request for Arbitration for the arbitral tribunal to determine in the ensuing arbitration proceedings.

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