The Australian Centre for International Commercial Arbitration (ACICA), which was appointed as the only default (non-court) appointing authority in Australia under the International Arbitration Act, has released the ACICA Rules: Incorporating clauses for arbitration and mediation.

A key feature of the revised ACICA rules is the new emergency arbitrator procedure provided for in Schedule 2. This permits a party to an arbitration agreement to make an application to ACICA for emergency interim measures of protection, prior to the constitution of an arbitral tribunal (section 1.1, Schedule 2).

The application must be made in writing and set out details of the measures sought and other prescribed particulars, including a statement of reasons for seeking the relief (section 1.2, Schedule 2). ACICA will then review and use its "best endeavours" to appoint an emergency arbitrator within one business day. The arbitrator must, of course, still discharge the usual disclosure and other requirements (section 2.1, Schedule 2). Unless otherwise agreed, the emergency arbitrator cannot be appointed, or act as the arbitrator to the dispute (section 2.3, Schedule 2).

The emergency arbitrator must determine the application for the emergency interim measures within five days from the date on which the application was referred to him (section 3.1, Schedule 2). In determining the application, the emergency arbitrator has the same powers to order interim measures as the arbitral panel (section 3.3, Schedule 2). However, the emergency arbitrator may only exercise the power if the applicant proves that:

(Section 3.5(a)-(c), Schedule 2.)

This formulation deliberately reflects the test for the granting of an interlocutory injunction under Australian common law.

The parties are bound by the determinations of the emergency arbitrator on the application (section 4.1, Schedule 2).

Other than dealing with interim measures that are granted or refused, the emergency arbitrator has no other power, and his jurisdiction ceases upon the appointment of the arbitral panel (section 5.1, Schedule 2). For the emergency arbitrator's decision to remain effective, the arbitral panel must be appointed within 90 days (so parties cannot leave the process at this stage with an indefinite effective decision) (section 4.3(d), Schedule 2).

The introduction of the emergency arbitrator provisions into the new ACICA Rules is a process that is novel for Australia and the extent to which it finds support will be eagerly anticipated.