Arbitration, which is chosen as an alternative to state judgments especially on international disputes, is being adapted to the needs of changing world in order to sustain its commitment to speed, trust, and flexibility. The right to choose arbitrators freely, one of the key elements that separate the arbitration from the state judgment, has several advantages such as practicing the trial swiftly with expert arbitrators. However, on the other side of the coin, choosing arbitrators slows down the procedure of interim conservatory measures and makes obtaining them from state courts more practical than obtaining them from arbitration institutions.
The parties request interim conservatory measures from the state courts in order to secure their rights and interests that have legal benefits in their protection before the arbitral trial begins. The reason is not that the arbitration institutions have no power to decide these measures. In fact, lots of countries, including Turkey, passed a law that allows arbitration institutions to award interim conservatory measures. Article 6 of the International Arbitration Act of Turkey, numbered 4686, gives the arbitrator to award provisional seizure and/or temporary injunction unless otherwise agreed by the parties.
The recent studies made in the 1990s for the sake of speeding up the interim conservatory measure procedure and being able to exclude the state judgment completely have evolved into “emergency arbitrator” among the international arbitration practice. The term “Emergency Arbitrator” was used by International Centre for Dispute Resolution (ICDR) for the first time and it was accepted by plenty of arbitration institutions in the following years. The term has joined the nature of arbitration in the world by being accepted before the International Chamber of Commerce (ICC) Rules in 2012. Provisions regarding the emergency arbitration of Istanbul Arbitration Centre (ISTAC) Rules were also significant for Turkish practitioners.
According to the rules of the emergency arbitrator procedure which were stated in the Annex-1 of ISTAC Rules, ISTAC appoints the emergency arbitrator within 2 working days from the Secretariat’s receipt of the application. The emergency arbitrator, after consulting with the parties shall establish a procedural timetable within 2 days of the receipt of the file, and shall inform the parties and the Secretariat of the procedural timetable. The decision is made within, at the latest, 7 days of receipt of the file.
ICC also gives a place to the emergency arbitrator rules in its amended 2021 Rules. According to article 29; an application for an emergency arbitrator shall be made if needed that cannot await the constitution of an arbitral tribunal. The emergency arbitrator’s order shall not bind the arbitral tribunal, and the arbitral tribunal may modify, terminate or annul the order or any modification thereto made by the emergency arbitrator. As per the provisions arbitration rules which were detailed in Annex-5 of 2021 Rules, the emergency arbitrator shall be appointed within 2 days and the order shall be made no later than 15 days. According to the rules of ICDR, which came into force on the 1st of May 2021, the emergency arbitrator shall be appointed within 1 day of the application and the order shall be made as soon as possible.
Both ISTAC, ICC or ICDR rules are close to each other as emergency arbitrator procedures. Application to the emergency arbitrator, for all three sets of rules, can be done without waiting for the constitution of the actual arbitration tribunal, and even before submitting a request for arbitration. However; The effect of applying to the emergency arbitrator before the arbitration institutions to request similar measures from state courts or vice versa is regulated by all three institutions and it was stated that applying to the emergency arbitrator shall not prevent to request for interim conservatory measures from the state courts (or vice versa).
As a result, the emergency arbitrator, which was developed in order to satisfy the needs of the parties as a whole with the pre-trial injunction decisions, and to extend the expertise and speed, which were the key elements of the arbitration, to the interim conservatory measure proceedings, is included in almost all international arbitration rules today. For many years, in national laws, unless otherwise agreed, it was possible for the parties to interim conservatory measures from arbitrators, whereas in practice, state courts were preferred over arbitral tribunals, as the state courts decided faster than the arbitrators. However, this situation led to some problematic situations such as the bias of the courts and the misunderstanding of the reasons for the requested measure. Since 2010, together with the changes and amendments in the arbitration rules that have been widely used all over the world, interim conservatory measures have now been ensured to be taken quickly, and the arbitration institutions, which were behind the state courts, are now far beyond the speed of the courts.
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