Turkey: The New Emergency Arbitrator Procedure Under The ICC 2012 Rules

Introduction

The new Arbitration Rules of the International Chamber of Commerce entered into force as of January 1, 2012 (the "Rules"). In a general sense, the Rules aim to improve efficiency in arbitration cases, control expenses and shorten the duration of arbitration. Within this scope, the Rules provide for an "emergency arbitrator" procedure. This significant and remarkable procedure aims to provide urgent interim measures for parties who cannot await the constitution of an arbitral tribunal.

Emergency Arbitrator Provisions and Scope of Application

Parties in need of urgent interim or conservatory measures and which cannot await the constitution of an arbitral tribunal may make an application for such measures (defined as "Emergency Measures"). This application shall be made in accordance with Article 29 of the Rules and Appendix V- Emergency Arbitrator Rules (together referred to as "Emergency Arbitrator Provisions" or "EAP").

The Emergency Arbitrator Provisions shall be applied within the scope of arbitration agreements signed on or after January 1, 2012. If the parties are not willing to apply Emergency Arbitrator Provisions, the arbitration agreements signed after January 1, 2012 must clearly specify that fact. The parties may agree in writing to apply EAP to agreements concluded before January 1, 2012. 

Pursuant to Article 29(6)(c), EAP shall not be applied if the parties have agreed to another pre-arbitral procedure that provides for the granting of conservatory, interim or similar measures.

Application Proceedings

A party seeking recourse to an emergency arbitrator must provide the appropriate documents and information for examination of the dispute; however, it is not necessary for such applicant to have already submitted a request for arbitration. Nonetheless, the applicant party is obliged to submit its request for arbitration to the Secretariat within 10 days following the date of application for an emergency arbitrator. This period may be extended where the emergency arbitrator deems necessary.

The application shall contain (among other information): the circumstances giving rise to the application, the dispute referred or to be referred to arbitration, a statement of the emergency measures sought and the reasons why the applicant needs urgent interim or conservatory measures and any relevant agreements, especially the arbitration agreement. On the basis of the information contained in the application, the President of the Court ("President") considers whether to apply Emergency Arbitrator Provisions or not. If the President considers, pursuant to Articles 29(5) and 29(6) of the Rules, that Emergency Arbitrator Provisions apply, a copy of the application shall be transmitted to the defendant; if the President considers otherwise - with regards to some or all of the parties - the parties shall be informed that the emergency arbitrator proceedings shall not take place.

Since the emergency arbitrator aims to take urgent measures, the emergency arbitrator shall be appointed within as short a time as possible. Therefore, the President shall appoint the emergency arbitrator as quickly as possible, generally within two days. Nonetheless, the emergency arbitrator appointed by the President may be challenged. A challenge against the emergency arbitrator must be made by the party making the challenge within three days from receipt of the notification of the appointment, or from the date when that party was informed of the fact and circumstances on which the challenge is based. The court shall make a decision on the challenge after the emergency arbitrator and the other party or parties have had the chance to provide their comments in writing within a suitable period of time.

Proceedings

In order to conduct an independent and impartial proceeding, the emergency arbitrator shall sign a statement of acceptance, availability, impartiality and independence before his appointment and they shall not act as an arbitrator in any arbitration proceedings in relation to the dispute that gave rise to the application.

Within two days from the transmission of the file to the emergency arbitrator, the emergency arbitrator shall establish a procedural timetable for the emergency arbitrator proceedings within as short a time as possible. The proceedings shall be conducted in the manner the emergency arbitrator deems most appropriate, taking into account the nature and urgency of the application.

The emergency arbitrator's decision shall take the form of an Order. The Order shall be made no later than fifteen days from the date on which the file was transmitted to the emergency arbitrator. The President may extend the time limit pursuant to a reasoned request from the emergency arbitrator or on the President's own initiative if the President decides it is necessary to do so.

The parties must respect the emergency arbitrator's Order and they commit to do so. The orders granted by the emergency arbitrator are not definitive since the orders of the emergency arbitrator are not binding on arbitration court in terms of subject, evaluation and justification. The arbitration court may amend and limit the orders granted by the emergency arbitrator and it may nullify them completely as well.

A party or parties' application for urgent interim and conservatory measures within the scope of the Emergency Arbitrator Provisions does not prevent them from seeking conservatory or urgent interim measures from a competent judicial authority before, or in some cases after, the EAP application is made. Article 29(7) of the Rules do not deem such measures being sought as breach of or waiver from the arbitration agreement. However, when interim and conservatory measures are sought from the competent courts, the Secretariat should be informed without any delay.

Conclusion

The ICC 2012 Arbitration Rules, which have been in force as of January 1, 2012, introduce the new concept of an emergency arbitrator whereby a party in need of urgent interim or conservatory measures and which cannot await the constitution of an arbitral tribunal may make an application for such measures pursuant to the Emergency Arbitrator Rules in Appendix V. The Parties' application for urgent interim and conservatory measures within the scope of Emergency Arbitrator Provisions does not prevent them from seeking conservatory or urgent interim measures from a competent judicial authority before the EAP application is made and, in some special cases, even afterwards. Furthermore, it should be kept in mind that, unless clearly specified in writing that the parties are not willing to apply them, the Emergency Arbitrator Provisions shall be applied within the scope of arbitration agreements signed on or after January 1, 2012. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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