Chapter Fourteen: Emergency Arbitrators - CCA Guide to Best Practices in Commercial Arbitration - Fourth Edition
Editor in Chief James M. Gaitis is a long-standing member of the Texas and Montana state bars, and a former longtime member of the Oklahoma state bar, who, since 1990, has specialized in serving as an arbitrator in complex commercial and oil & gas/energy arbitrations. Mr. Gaitis is the former Director (and Principal Research and Teaching Fellow) of the International Dispute Resolution Programme at the Centre for Energy, Petroleum & Mineral Law and Policy (CEPMLP), University of Dundee, Scotland, where he designed and taught classes on international dispute resolution and advocacy in international oil & gas arbitration to LLM students and professionals. In private practice, he served variously as lead trial counsel, in-house counsel, and special counsel for a diverse array of companies, individuals, and other entities involved in the domestic and international oil & gas industries. He is listed on a broad variety of international and domestic arbitration panels, including the AAA National Energy Panel, Construction Panel, Merger & Acquisitions Panels, and Large, Complex Case Panel; the ICDR’s Panel of Arbitrators and the ICDR’s prestigious Energy Arbitrators List; the British Columbia International Commercial Arbitration Centre; and the CPR’s Oil & Gas/Energy Panel and Cross-Border Panel. He frequently serves as a chair, party-appointed arbitrator, emergency arbitrator, and list-appointed arbitrator in cases involving all aspects of the oil & gas industry, as well as in commercial cases relating to such matters as manufacturing, construction lending, engineering, asset sales, business torts, and real property. Many of his arbitrations, which have included claims in excess of $1 billion, have involved Fortune 100 and Oil & Gas Journal Top 50 companies, as well as national oil companies and international oil companies.
A Fellow of the College of Commercial Arbitrators (2004–present) and a Fellow and Chartered Arbitrator of the Chartered Institute of Arbitrators (2003–present), Mr. Gaitis is a frequently invited speaker and lecturer, has testified in district court proceedings as an expert on arbitrator disclosures and ethics, and is the author of numerous articles relating to arbitration law, several of which have been cited repeatedly to the United States Supreme Court, various federal district courts and federal courts of appeal, and various other courts, such as the Supreme Courts of Texas and Puerto Rico. In 2006, 2010, and 2013, he respectively served first as an Editor and then repeatedly as Editor in Chief of the first, second, and third editions of The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration. He also is the Editor of, and a contributing author to, The Leading Practitioners’ Guide to International Oil & Gas Arbitration (Juris 2015) and serves on the Board of Editors of the Journal of World Energy Law & Business (OUP/AIPN). He is a graduate of the University of Notre Dame (BA 1976) and the University of Iowa College of Law (JD 1978), where he served as a Note & Comment Editor on The Iowa Law Review.
Michael S. Wilk, Houston, Texas
Arbitrators who desire to serve as emergency arbitrators must be prepared in advance to fulfill a variety of time-consuming managerial duties and then render a decision without delay and within a highly truncated period of time.
Most arbitration rules now provide for a process by which parties may obtain emergency arbitral relief prior to the appointment of the sole arbitrator or the tribunal (collectively referred to in this chapter as the constitution of the tribunal). Such rules generally are intended to allow the parties to select arbitral rather than judicial relief when the tribunal is not yet constituted. The same rules often provide that the filing of an application for court-ordered emergency relief shall not vitiate the parties’ agreement to arbitrate. See, e.g., AAA Rule R‑38(h); CPR Non-Administered Rule 14.12. See also JAMS Rule 24(e) (generally providing—without specifically addressing emergency arbitrators—that “recourse to a court for interim or provisional relief shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate”).
Arbitral rules pertaining to emergency relief are a relatively recent development. As a consequence, there is a dearth of reliable guidance in the form of legal precedent or scholarly commentary regarding the many procedural issues that can arise in connection with emergency arbitral proceedings. This chapter identifies many of those issues and discusses best practices for emergency arbitrators serving in domestic arbitrations. Matters concerning the role of emergency arbitrators in international arbitrations are addressed in Section IV of Chapter 18, infra. This chapter refers to emergency arbitrators; the CPR Non-Administered and Administered Rules use the term special arbitrator.