The ICDR's Emergency Arbitrator Procedure in Action - Dispute Resolution Journal - Vol. 63, No. 4
Guillaume Lemenez recently joined the United Nations Office of Legal Affairs as an associate legal officer. Previously, he was a case manager at the International Centre for Dispute Resolution (ICDR). Mr. Lemenez can be reached at firstname.lastname@example.org. Paul Quigley is an associate practicing arbitration and litigation in Simpson Thacher & Bartlett LLP’s New York office. He can be reached at email@example.com. The authors would like to thank Yulia Andreeva of Debevoise & Plimpton LLP and the ICDR for their helpful comments.
Originally from Dispute Resolution Journal
In Part I of this article,1 we discussed the International Centre for Dispute Resolution’s (ICDR) procedure for seeking emergency interim relief under Article 37 of the ICDR International Arbitration Rules before the appointment of the arbitrators.2 We outlined how the emergency arbitrator procedure works and described four cases in which a party sought preliminary emergency relief under Article 37. We ended the article with a problem: What if emergency relief is granted against a party, but that party decides that it is in its strategic interest to disobey, deliberately misinterpret, or simply refuse to comply with the emergency arbitrator’s Article 37 decision? Can the party who obtained that decision (which could be in the form of an order or interim award) expect to obtain enforcement from a national court?
Here in Part II we seek to examine these questions for parties who might seek enforcement of an emergency arbitrator’s Article 37 decision in a U.S. federal district court.3 We know of no U.S. decisions specifically addressing the enforceability of an Article 37 decision or a decision made under another emergency interim relief procedure.4 Hence we base our examination on the reasoning in court decisions involving the enforceability of interim relief granted by the arbitrators appointed to hear and decide the case.
U.S. federal law on arbitration provides that all final written arbitral decisions are enforceable, provided certain limited exceptions do not apply. We first briefly discuss this controlling law. Next, we discuss whether an emergency arbitrator’s Article 37 decision may be considered a “final award” for purposes of enforcement in U.S. courts. Finally, we examine whether any exceptions could apply that would render Article 37 decisions unenforceable.