On 1 January 2010, the revised SCC rules entered into force which introduced the possibility for parties to appoint an emergency arbitrator to order interim measures (see Legal update, Revised SCC arbitration rules have entered into force). Four applications were received by the SCC in 2010. In all, the mechanism of the emergency arbitrator has proven efficient during its first year. In all cases, the SCC appointed an arbitrator within the 24-hour time limit and the decisions were rendered within the five days prescribed in the SCC rules, save for two cases where a request for an extension was made based on a petition by the respondent. In those cases the decisions were rendered after 12 and six days respectively.

One out of the four requests for an emergency arbitrator to decide on interim measures was granted. That request was granted because the claimant had shown probable cause for its case and that the requested interim measure was necessary to safeguard its substantive rights. The other requests were denied for various reasons. All four cases are summarised below and may provide some guidelines for future applications for an emergency arbitrator.

The first application concerned a dispute over a transaction of a transshipment business between a Dutch claimant and a Cypriot respondent. The claimant requested interim relief to secure a claim on an outstanding amount of USD145 million that the respondent failed to pay in accordance with the purchase agreement.

An emergency arbitrator was appointed within 13 hours from the SCC receiving the application and a decision was laid down on day eight (after an extension of the time limit due to the respondent's notification that it needed additional time to confirm its representation). Two of four other requests for interim measures were denied because they were directed towards third party entities, thus falling out of the emergency arbitrator's jurisdiction. The remaining requests were aimed at prohibiting the dispossession of real estate and shares in a certain company by the respondent. The emergency arbitrator held that, as a general principle, an interim measure can only be granted if the claimant shows that the harm which is to be prevented by that measure is considered to be irreparable and of an urgent or imminent nature. Since the claimant had not shown that the sale of such assets would be to the detriment of the claimant's interest in receiving the payment of the respondent, the application for interim measures was denied.

An Israeli claimant requested an emergency arbitrator to grant an injunction ordering the Georgian respondent to refrain from collecting or receiving any payments under the bank guarantees that the claimant had provided for its performance in a building project. The emergency arbitrator found the claimant's request to be, prima facie, a substantiated claim but denied the claimant's request based on the assessment that no irreparable harm would be caused to the claimant if the respondent was to invoke the payment under the guarantees, nor was this matter of an urgent nature. The decision was handed down on the fifth day after receiving the application.

A dispute between a Norwegian claimant and a Finnish respondent following the termination of a reseller agreement led the Norwegian reseller to apply for an emergency arbitrator. The claimant requested that the Finnish respondent, as an interim measure, deliver certain products and provide the claimant with access to tools for service and maintenance following the termination of the agreement. The emergency arbitrator stated that the requested interim measures were aimed at securing a claim which was to be ruled on by the arbitrators, and that he could not rule upon a substantive issue such as that. For these reasons the request for the respondent to deliver certain products was dismissed. The request for access to certain equipment was later accepted by the respondent and it was therefore not necessary for the emergency arbitrator to address it.

The fourth request for interim measures was granted by the emergency arbitrator. It originated in a dispute between a Swiss claimant and a Swedish respondent concerning an alleged breach of a shareholders agreement. The claimant requested an injunction ordering the respondent not in any way to sell, assign or transfer any of its shares in a certain company since this would endanger the claimant's interests arising out of the shareholders agreement. The emergency arbitrator found that the claimant had established a probable cause for its case and that the requested interim measure was necessary to safeguard the substantive rights of the claimant. He therefore granted the request.