The new rules providing for the appointment of an emergency arbitrator aim to provide parties with the possibility of obtaining interim measures prior to the constitution of an arbitral tribunal, thus allowing for the timely establishment of security over assets and preservation of documents.

The emergency arbitrator rules can be found in Appendix II of the SCC Arbitration Rules. They are designed as an opt-out solution and thus apply to all SCC arbitrations unless the parties expressly agree otherwise. Applications for emergency interim measures require notice to be given to the opposing party and therefore are not intended to be available on an ex parte basis. Further, the rules do not prevent a party from requesting the courts to grant interim measures.

Emergency interim measures may be requested prior to and after the commencement of arbitration, but before the referral of the case to the tribunal. The SCC Rules require that a request for emergency interim relief be reasoned. The application requirements are set out in Art. 2 of Appendix II. The duty to notify the opposing party lies with the Secretariat of the SCC Institute, which shall send the application to the other party as soon as it has been received. The Board of the SCC Institute shall appoint an emergency arbitrator within 24 hours of receipt of the application.

Each party shall be given an equal and reasonable opportunity to present its case, taking into account the urgency inherent in such proceedings. An emergency decision on interim measures shall be made not later than five days from the referral of the case to the emergency arbitrator and may be subject to provision of appropriate security. The five day time limit may be extended by the Board upon a reasoned request from the emergency arbitrator or if it is otherwise deemed necessary, for example, if the defendant has not been served or the notification has taken a long time. The decision may take the form of an order or an award.

The mandate of an emergency arbitrator terminates when the case has been referred to an arbitral tribunal. Until then, the emergency arbitrator may amend or revoke its decision upon a reasoned request by a party. An emergency decision also ceases to be binding if arbitration is not commenced within 30 days from the date of the emergency decision, or if the case is not referred to an arbitral tribunal within 90 days. The SCC Rules provide that an arbitral tribunal is not bound by the decision of the emergency arbitrator and that an emergency arbitrator may not act as an arbitrator in ordinary arbitration proceedings related to the same dispute, unless the parties agree otherwise.

The costs of the emergency proceedings consist of the fee of the emergency arbitrator, in the amount of EUR 12,000, and the application fee of the SCC Institute, which amounts to EUR 3,000. However, the Board of the SCC Institute may decide to increase or reduce the costs having regard to the nature of the case, the work performed by the emergency arbitrator and the SCC, and other relevant circumstances. The costs of the emergency proceedings shall be paid by the party applying for the appointment of the emergency arbitrator upon filing the application and may be allocated between the parties in the final award at the request of a party.

In connection with the adoption of the rules on emergency arbitrators, a few amendments have also been made to the SCC Rules (Articles 2, 4, 9, 13 and 14 have been amended). Among other things, the time given to the parties to jointly appoint an arbitrator has been reduced from 30 to 10 days. Further, the new version of the SCC Rules requires that an arbitrator's statement of impartiality and independence shall be sent not only to the parties, but also to the other arbitrators.