Speaking from the claimant’s perspective, Niklas Åstenius, Mannheimer Swartling in Malmö, said that an emergency arbitrator should be considered when there is a need for interim measures and it is important to preserve the confidentiality of the dispute. Another situation when courts should be avoided is when a party distrusts the competent courts. Court proceedings should be considered, however, if it is considered essential to take the counterparty by surprise, and thus requiring ex parte proceedings, or if there is a need to involve third parties. Niklas advised the audience to keep the application simple and to provide clear reasoning. If a party is fortunate enough to receive an affirmative decision from the emergency arbitrator, it is important to monitor compliance and secure that the decision is fulfilled. In summary, Niklas found that emergency arbitration has, if successful, the benefit of giving the claimant a head start on the review of the merits of the case, while keeping the dispute confidentiality.
James Hosking, Chaffetz Lindsey in New York, discussed the strategic options available to a respondent faced with an application for an emergency arbitrator. James identified three options available to the respondent: initiate settlement discussions, be passive or provide a defense. If the last option is chosen, James advised respondents to carefully think through the response to the application. Questions such as applicable law, jurisdiction, supporting evidence, requests for security, damages or costs are some of the issues to be considered. As in arbitration and proper litigation, the respondent needs to ask if it is in its interest to slow things down. If the emergency arbitrator makes a decision in favor of the applicant, the respondent could oppose the enforcement of the decision, apply for the decision to be set aside or apply to the emergency arbitrator for the decision to be vacated or modified. James also addressed the challenges a respondent encounters in emergency proceedings, specifically time pressure and the fact that the standards to be applied are not specified in most rules. On the positive side, some of the emergency rules, like the SCC Rules for example, state that the applicant bears the costs of the emergency proceedings and only a subsequent arbitral tribunal can distribute the costs otherwise.
Dr. Jan-Michael Ahrens, Siemens AG in Erlangen, gave the in-house counsel’s perspective on the respective positions.
Lars Edlund, Grönberg in Stockholm, who has acted as emergency arbitrator in one of the seven emergency arbitrations under the SCC Rules, gave an insightful description of the steps involved in such proceedings.
Francesca Mazza, ICC International Court of Arbitration in Paris, shared her experience from drafting the 2012 ICC Rules on an emergency arbitrator.
Gisela Knuts, Roschier in Helsinki and Stockholm, acted as moderator of the seminar.
The SAA, who organized the seminar, is an organization for lawyers worldwide and is dedicated to the practice and theory of arbitration. Through conferences, seminars, arbitrator trainings and publication projects, the SAA promotes arbitration as a dispute resolution method, Swedish and international arbitration law and Sweden as an international arbitration venue.
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SAA Swedish Arbitration Days 2012