It is beneficial to briefly look at whether a demand for an anti-suit injunction is possible in pre-arbitration and post-arbitration. For instance, may a party request an anti-suit injunction from an emergency arbitrator before the actual arbitration process starts? Even if a decision has been made, how will it be enforced? What does it mean after an actual arbitral tribunal has been constituted?
Such questions regard how soon or when at the latest an anti-suit injunction can be requested. As discussed above, arbitrators have the authority to issue interim measures including anti-suit injunctions. However, there remains the question of whether it is possible to exercise such measures before and after arbitration. This is because there is no tribunal during the pre-arbitration process, and in the post-arbitration stage the tribunal has already finished by issuing a final award. These questions will be discussed below in light of arbitration rules and practice.
SCC Arbitration Rules Appendix II regulates emergency arbitrators. According to article 8/p.1, “any emergency decision on interim measures shall be made no later than 5 days from the date the application was referred to the Emergency Arbitrator.” Article 9 states that an emergency decision shall be binding on the parties when rendered, whereas the actual Arbitral Tribunal will not be bound by the decision(s) and reasons of the Emergency Arbitrator. Parties should be careful while making an arbitration agreement because choosing institutional arbitration rules may automatically mean the acceptance of emergency arbitration rules and their binding character.