ICDPASO Commercial Arbitration Rules Interpretation Series25“Emergency Arbitrators”

The Commercial Arbitration Rules of the International Commercial Dispute Prevention and Settlement Organization (ICDPASO) (the “Rules”) establish, through the coordinated design of Article 24 “Interim Measures” and Article 25 “Emergency Arbitrator,” an integrated interim-relief system that covers the entire arbitral process while balancing efficiency and fairness. In particular, Article 25—through clear time limits, structured application requirements, strict procedural safeguards, and a well-defined mechanism for connecting powers and responsibilities—effectively fills the institutional vacuum before the constitution of the arbitral tribunal, demonstrating the forward-looking and systematic nature of the drafting.

This article will focus on Article 25, and, in combination with the governance framework of Article 24, will systematically analyze the provisions’ meaning, jurisprudential logic, and practical operation from a comparative perspective that considers the evolution of the UNCITRAL Model Law on International Commercial Arbitration and the rules of major international arbitral institutions [the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), the Singapore International Arbitration Centre (SIAC), and the Hong Kong International Arbitration Centre (HKIAC)]. Against the institutional background of the newly revised Arbitration Law of the People’s Republic of China (hereinafter, the “new Arbitration Law”) passed by vote at the 17th meeting of the Standing Committee of the 14th National People’s Congress, this article will also explore the system’s applicable value and practical guidance within a “arbitration–judicial” dual-track collaborative framework.

I. Origin of the Issue: From “Ultimate Victory” to “Timely Relief”

In international commercial disputes, the “fatal risk” is often not the legal issues themselves, but the sudden compression of the time window. Common situations in practice include: asset transfers that hollow out the foundation for enforcement—where the counterparty, at the outset of a dispute, transfers assets through related-party transactions, cross-border remittances, mortgage refinancing, and the like; loss of evidence and irreversibility of facts—where key evidence such as construction quality records, electronic data, logistics traces, source code, and access logs can be rapidly tampered with or deleted; and faits accomplis that occupy the space for enforcement of an award—where project sites are demolished or altered, key equipment is disposed of, or control is unilaterally taken over, such that even a final victory cannot restore the situation.

These risks lead to a shared conclusion: before a merits award is formed, there must be an interim relief mechanism for “procedural hemostasis” and “risk control.” When UNCITRAL revised the Model Law on International Commercial Arbitration in 2006 (hereinafter, the “Model Law (2006)”), it added Chapter IV A to address interim measures with a more comprehensive institutional framework, and expressly positioned interim measures as a key support mechanism for arbitration.① This evolution reveals the core function of interim relief: enabling arbitration to be “timely, controllable, and enforceable.”

However, an interim measures system naturally presupposes that the arbitral tribunal has already been constituted. Reality is often the opposite: at the early stage when the tribunal is yet to be formed, risks tend to be concentrated. To fill this vacuum, institutions such as the ICC, LCIA, SIAC, and HKIAC provide a short-term solution through emergency arbitrator procedures for circumstances that “cannot wait for the constitution of the tribunal.” ②Article 25 is precisely a “time-dimension completion” of the interim measures system in Article 24 under this global institutional trend, thereby forming an integrated interim relief chapter of “Article 24 + Article 25.”

II. Text of Article 24 (Review) and Article 25 of the Rules

Article 24. Provisional Measures

1. Upon application by either party, the Arbitral Tribunal may, as it deems appropriate, grant such provisional measures, including but not limited to:

(a) maintain the status quo or restore to the original status before the dispute is resolved;

(b) take measures to prevent or avoid:

(i) existing or imminent damage;

(ii) obstruction to the arbitral proceedings;

(c) provide property preservation for the enforcement of arbitral awards;

(d) preserve substantive evidence related to the dispute.

2. If a party requests provisional measures, it shall state the reasons why the requesting party is entitled to such provisional measure.

3. The Arbitral Tribunal may require the requesting party to provide security in connection with the provisional measure requested.

4. The Arbitral Tribunal may require the parties to disclose without delay material changes in the circumstances on which the provisional measure is requested or granted.

5. Upon the application by either party, the Arbitral Tribunal may modify, suspend or terminate the provisional measure granted, or the Arbitral Tribunal may, under special circumstances, modify, suspend or terminate the provisional measure granted at its own discretion after notifying the parties in advance.

6. If the Arbitral Tribunal subsequently determines that the provisional measures should not have been granted under the then circumstance, the requesting party shall be liable for all losses caused to other parties by such measures.

7. A party’s application to judicial authorities for provisional measures shall not be deemed as a derogation or waiver of the arbitration agreement. 

Article 25. Emergency Arbitrators

1. If the parties need to, from the commencement of the arbitral proceedings to the formation of the Arbitral Tribunal, take provisional or preservation measures due to emergencies, they may submit a written application for the appointment of emergency arbitrators to the Court of Arbitration.

The written application shall include:

(a) the names and registered service addresses of the parties involved and their representatives;

(b) the emergency measures requested and reasons therefor;

(c) the proposed seat of arbitration, the governing law and the language of arbitration;

(d) other documents or information suitable for or conducive to the effective hearing of the application, including the arbitration agreement on which it is based.

The party applying for the Emergency Arbitrator Procedure shall serve a copy of the application to the other parties and inform the Court of Arbitration of the service, including the method and date thereof.

2. If the Court of Arbitration decides to apply the Emergency Arbitrator Procedure, it shall appoint the emergency arbitrators within two (2) days from the date of receipt of the written application and the advance payment of the costs for the Emergency Arbitrator Procedure by the Claimant as required, and notify the parties of the appointment.

3. The information disclosure by and challenges to emergency arbitrators shall be handled with reference to Articles 14 and 15 of these Rules. If a party challenges an emergency arbitrator on the ground of the matters disclosed, it shall do so within two (2) days from the date of receipt of the written disclosure by the emergency arbitrator. If no challenge is made within the time limit, no emergency arbitrator shall be challenged thereafter on the ground of the matters disclosed.

4. The emergency arbitrator shall consider the nature and urgency of the request for emergency measures and conduct relevant procedures in such manner as he/she deems appropriate.

The emergency arbitrator shall be independent and impartial at all times to ensure that the parties have a reasonable opportunity to present their statements.

5. The emergency arbitrator shall make relevant decisions and explain the reasons within fourteen (14) days from the date of acceptance of appointment. The parties shall abide by the decision made by the emergency arbitrator.

6. Unless otherwise agreed by the parties, no emergency arbitrator shall act as an arbitrator in a case related to the emergency measures.

7. The Arbitral Tribunal may, after its formation, modify, suspend or revoke the relevant decisions made by the emergency arbitrator.

III. Institutional Genealogy and Comparative Law Study: The Evolution of Rules from UNCITRAL to ICC/SIAC/HKIAC/LCIA

This part aims to construct a “rule coordinate system” for understanding the substantive meaning of the subsequent provisions: Article 24 “Interim Measures” and Article 25 “Emergency Arbitrator” of the Rules are not isolated procedural clauses, but should be examined within the overall context of the development of international commercial arbitration rules. Together, they reflect a dynamic balance and structured response of contemporary arbitration systems to the classic triangle of “efficiency, fairness, and enforceability.”

(1) UNCITRAL Model Law: A “procedural risk-control model” of interim measures plus preliminary orders

The key point of the Model Law (2006) revision is that it expanded the relatively principled authorization clause (Article 17)③ of the 1985 version into a structurally complete and logically coherent Chapter IV A, covering modules such as types of interim measures, standards for granting, security, disclosure obligations, damages for wrongful applications, and recognition and enforcement. Of the greatest methodological significance for analyzing the integrated interim relief framework of the Rules is its structured expression of the legitimacy of interim relief:

Clarification of measures by type: As stated in the earlier Interpretation of Article 24 “Interim Measures” of the ICDPASO Commercial Arbitration Rules Interpretation Series (hereinafter, the “Interpretation of Article 24”), the measures expressly included in the Model Law (2006)—maintaining or restoring the status quo; preventing current or imminent harm or interference with proceedings; preservation of assets; and preservation of evidence—are highly mappable to Article 24(1) of the Rules;

Layered standards for granting: The conditions established in Article 17A of the Model Law (2006) require not only a “reasonable possibility” of success on the merits, but also emphasize harm that “cannot be adequately compensated by an award of damages,” as well as a balance of harms and proportionality④, reflecting that the arbitral tribunal must still make a preliminary yet prudent merits assessment under urgent procedures.

Preliminary orders as exceptional relief⑤: The preliminary order regime allows temporary protection to be issued without hearing the other side in urgent circumstances, yet it embodies risk control throughout: it is strictly limited to situations where prior notice is likely to frustrate the purpose of the measure, and is paired with procedural “safety valves” such as immediate post-order notice, providing an opportunity to be heard within the shortest time, and automatic short-term effectiveness.

Security, disclosure, and damages: Articles 17E–17G of the Model Law (2006) incorporate the risks of inadvertent harm, information asymmetry, and abuse into institutional governance. In particular, liability for costs and damages arising from wrongful applications has already been analyzed in the Interpretation of Article 24 and will not be repeated here.

UNCITRAL’s lesson is that interim relief is not simply “the faster the better”; rather, even under time pressure, it must maintain defensible procedural legitimacy and correctability.

(2) The ICC Emergency Arbitrator Procedure: A typical model of “adversarial rapid relief” before tribunal constitution

1. Form of decision and binding force

The ICC Rules (2021) expressly provide that the emergency arbitrator’s decision takes the form of an “order” and, based on the parties’ undertaking to accept its binding effect, has procedural enforceability. ⑥This positioning both grants temporary binding force and distinguishes it from an “award” issued by the arbitral tribunal with final effect.

2. Procedural safeguards and the balance of efficiency

While emphasizing rapid response, the procedure still ensures due process through institutional supervision, the emergency arbitrator’s independence disclosure and challenge mechanisms, and the opportunity for both parties to be heard.⑦ The emergency arbitrator may flexibly choose an appropriate procedure depending on urgency, embodying the principle of “efficiency with fairness.”

3. Connection with the arbitral tribunal’s authority

The ICC Rules provide that the emergency arbitrator’s order does not bind the subsequently constituted tribunal, which has authority to modify, terminate, or revoke it. ⑧This design realizes interim relief in the emergency stage while reserving ultimate decision-making for the tribunal that hears the merits, preventing emergency measures from improperly affecting substantive adjudication.

The ICC Rules highlight three logics: first, speed priority—rapid intervention before tribunal constitution to provide short-term and immediate procedural relief; second, procedural legitimacy—relying on the institutional framework to ensure neutrality and party participation; and third, checks and balances—clarifying the temporary nature of the emergency arbitrator’s decision and returning ultimate authority to the tribunal, safeguarding the tribunal’s final discretion and avoiding the “emergency stage’s first impression” solidifying into a final judgment.

(3) HKIAC Rules (2024): An efficient emergency relief system built on “24 hours + 14 days” time limits

The HKIAC Rules (2024) set highly efficiency-oriented time limits for the emergency arbitrator procedure, reflecting an institutional aim to rapidly stabilize the dispute situation before the arbitral tribunal is constituted.

Core time limits: dual constraints from “acceptance” to “decision”

Appointment of the emergency arbitrator: Under the HKIAC Rules (2024), if the institution decides to accept the emergency relief application, it shall complete the appointment within 24 hours after receiving the application and the advance payment. ⑨This is significantly shorter than the common 2–3 days among many institutions, highlighting timeliness at the start of the procedure.

Issuance of the emergency decision: The HKIAC Rules (2024) provide that the emergency arbitrator usually issues a decision within about 14 days.⑩ This is essentially consistent with the 14-day period in Article 25(5) of the Rules, forming a procedural rhythm of “rapid initiation—compact conduct.”

Institutional logic: rigid time limits as a guarantee of availability

HKIAC’s emergency arbitrator procedure essentially compresses procedural gaps to implement “emergency” in both text and operation. The 24-hour appointment period is not only a requirement for institutional efficiency, but also signals predictability to parties. This design aims to minimize the risk that relief will be lost due to procedural delay, particularly suitable for disputes with fast-moving assets or time-sensitive commercial opportunities.

Article 25(2) of the Rules—“appointment within 2 days” and “decision within 14 days”—already reflects an emphasis on efficiency. HKIAC’s “24-hour target” goes further by pushing time limits to an extreme. Both share a core idea: clear time limits constrain the institution and the emergency arbitrator to ensure interim relief truly fits urgent realities. However, compact time limits also impose higher demands on parties’ preparation, the emergency arbitrator’s procedural implementation efficiency, and the institution’s coordination capability.

(4) SIAC Rules (2025): Strengthening pre-tribunal intervention through “protective preliminary orders”

The SIAC Rules (2025) introduce significant innovation in the emergency arbitrator procedure, with the key highlight being the express introduction of a “protective preliminary order”system. This regime is also provided in the Model Law (2006) (though not under the emergency arbitrator procedure)①①, aiming to provide parties with more timely and protective pre-emptive relief tools, coupled with strict procedural constraints to balance efficiency and due process.

1. Positioning and time limits of protective preliminary orders

Functional positioning: A protective preliminary order applies to exceptional situations of extreme urgency where giving prior notice to the other party may defeat the purpose of the measure. It allows an applicant to make a unilateral request for interim measures to the emergency arbitrator without notifying the other party.①②

Ultra-fast handling requirement: The SIAC Rules (2025) require the emergency arbitrator to decide whether to issue such an order within 24 hours after receiving the application.①③This time limit reflects procedural responsiveness to “extreme urgency.”

Effect and duration: Such an order has short-term effect, for example, often set at around 14 days under the SIAC Rules (2025), and a hearing involving both parties must be arranged as soon as possible to decide whether to convert it into ordinary interim measures.①④

2. Institutional spirit: dual orientation of strong intervention and strict checks and balances

The protective preliminary order introduced by SIAC aligns with the Model Law (2006) in spirit, with core logic reflected as follows:

On the one hand, it provides strengthened pre-emptive protection. Before the tribunal is constituted, it offers a rapid protection tool to address “urgent risks” or “urgent changes,” especially suitable for asset transfers and loss of evidence.

On the other hand, it embeds procedural safety valves. By imposing strict conditions, an extremely short validity period, requiring prompt post-order hearings, and reserving the tribunal’s right to modify or revoke, it prevents abuse.

At present, Article 25 of the Rules does not expressly distinguish between “interim measures” and “protective preliminary orders,” and still adopts notification to the other party as a principle for procedural initiation. SIAC’s innovation provides potential guidance for ICDPASO to further refine its emergency relief system in the future: while adhering to procedural fairness, whether and how to design more precise and faster procedures for “asymmetric emergency situations.” Meanwhile, the SIAC Rules (2025) also indicate that such strong intervention tools must be paired with stricter time limits, stricter review, and more timely conversion mechanisms to ensure due process and substantive effectiveness.

(5) LCIA Rules (2020): Strengthening legitimacy and reviewability through an “Order/Award dual-track system” and mandatory written reasoning

The LCIA Rules (2020) construct an emergency arbitrator procedure that is both flexible, rigorous, and predictable. Its core features are reflected in a dual-track mechanism for the form of decisions and mandatory requirements for written decisions and reasoning, aiming to ensure emergency relief does not undermine due process or subsequent reviewability.

1. Form of decision: dual-track of Order and Award

The LCIA Rules (2020) provide that the emergency arbitrator may issue two forms of decisions depending on the case①⑤:

Order: typically for procedural and interim arrangements.

Award: where the decision involves measures requiring finality or stronger enforceability. The LCIA Rules (2020) require that if issued as an Award, it must satisfy the rules’ requirements regarding the form and effect of arbitral awards.

This distinction grants the emergency arbitrator flexibility to select the decision form that matches the nature of the measure and the parties’ needs.

2. Strict written and reasoning requirements

Regardless of form, the LCIA Rules require the emergency arbitrator’s decision to be in writing and to state reasons.①⑥ This requirement has dual functions:

On the one hand, it safeguards due process. Mandatory reasoning compels careful weighing of arguments and evidence, increases transparency, and substantively respects parties’ right to be heard and participate.

On the other hand, it facilitates subsequent review and integration. Detailed reasons provide a clear basis for the tribunal, under the LCIA Rules (2020), to modify, revoke, or issue other orders.①⑦

Compared with Article 25 of the Rules, which generally refers to “relevant decisions,” the LCIA Rules (2020) adopt a more refined distinction regarding decision forms (Order vs Award).

(6) Comparative summary: two paradigms of emergency relief in major international arbitration rules

A comparative review of mainstream arbitration rules shows that emergency arbitrator procedures can be summarized into two principal institutional orientations:

1. Balanced Adversarial Model

Represented by the HKIAC and LCIA Rules. Its core feature is that while pursuing efficiency, it always emphasizes adversarial procedure and the parties’ opportunity to be heard. Even in urgent circumstances, notifying the other party remains the principle.①⑧ Its focus is to seek balance between timeliness and due process through relatively compact yet complete adversarial procedure, supplemented by requirements such as reasoned emergency decisions or full post hoc review by the tribunal. This paradigm emphasizes predictability and smooth integration with subsequent arbitral proceedings.

2. Provisional Protective Model

Typified by the SIAC Rules (2025) (which expressly introduce protective preliminary orders) and the Model Law (2006) framework. Beyond ordinary adversarial procedure, it creates more interventionist special tools to address situations where “notifying the other party may defeat the purpose.” It allows unilateral application without notice for short-term coercive constraints, but imposes extremely strict safety valves: very short decision timelines (e.g., within 24 hours), short validity periods, mandatory prompt conversion to inter partes hearings, and the tribunal’s ultimate power to modify or revoke. Its logic is “trading procedural strictness for earlier intervention,” achieving special protection in extraordinary emergency states.

3. Positioning and significance of Article 25 of the Rules

Overall, Article 25 of the Rules is closer to the “balanced adversarial” paradigm. Article 25(1) expressly requires that the application be served on the other party, establishing a foundation of notice and adversarial process; at the same time, it constructs a basic due process framework and power balancing through provisions such as the requirement to state reasons and the tribunal’s subsequent power to modify or revoke. This orientation aligns with the emphasis on procedural legitimacy in China’s arbitration-related judicial review practice, helps enhance the acceptability and enforceability expectations of emergency decisions domestically and internationally, and reflects a pragmatic consideration of local judicial coordination needs in institutional transplantation.

IV. Jurisprudential Analysis: The Legitimacy Structure of the Emergency Arbitrator System

The jurisprudential assessment of the emergency arbitrator system centers on how it maintains due process, reliability, and enforceability under the dual constraints of “extremely short time limits” and “procedural front-loading.” This article summarizes its legitimacy structure into three mutually supporting theoretical pillars, which together establish the emergency arbitrator’s special position and functional boundaries within arbitration.

(1) Functional legitimacy: unity of preservation, prevention, and procedural protection

Relief provided by an emergency arbitrator is not a final adjudication on the merits, but serves the fundamental purpose of arbitration—ensuring the final award has practical meaning and enforceability. Its functions appear at three levels:

Preservation: through interim or preservation measures, laying a material foundation for enforcement of the future award and preventing parties from transferring or concealing assets during procedural gaps;

Prevention: aimed at stopping conduct that may cause irreversible harm and preventing faits accomplis from occupying the remedy space, especially critical in intellectual property, trade secrets, and market competition;

Procedural protection: preventing loss of evidence, changes in key status, or substantial interference with the arbitral process, maintaining the integrity and authority of arbitration.

These three functions align closely with the Model Law (2006) Chapter IV A positioning of interim measures and reflect the emergency arbitrator system’s internal consistency within the arbitral framework.①⑨

(2) Epistemic restraint: the non-prejudgment principle based on “prima facie review”

Emergency relief decisions are often made under incomplete information and urgent timelines; their legitimacy largely stems from the “preliminary” and “restrained” nature of the decision standard. Therefore, in the context of the Rules, the emergency arbitrator’s reasoning should remain cautious and assess, prudently, the following:

1. whether the applicant’s asserted right has a “reasonable possibility”;

2. whether failing to adopt emergency measures will cause “irreparable harm”;

3. whether the burden of the measure is proportionate to the interests to be protected;

4. whether an urgent state exists that affects procedural fairness.

This “prima facie review” model satisfies efficiency needs under emergency conditions while avoiding encroachment upon the tribunal’s ultimate authority over the merits, reflecting the auxiliary and provisional nature of interim relief.

(3) Ex post correctability: the tribunal’s ultimate authority and continuous supervision

The interim and non-final nature of emergency arbitrator decisions requires them to be placed under the tribunal’s subsequent review. Mainstream international arbitration rules (such as the ICC⑳ and SIAC②①) and the Rules all expressly provide that once the tribunal is constituted, it may modify, suspend, or revoke the emergency arbitrator’s decision. This “authority re-collection mechanism” is significant:

It ensures that emergency decisions do not materially affect the independence and fairness of merits adjudication;

It reflects the tribunal’s overall control of the proceedings, with the emergency arbitrator merely serving as a transitional role before tribunal constitution;

It provides a correction channel for potential errors or changes in circumstances and serves as the ultimate institutional safeguard for the legitimacy of emergency procedure.

V. Overview of the Integrated Mechanism: Coordinated Operation of Articles 24 and 25

Under the Rules, Article 24 “Interim Measures” and Article 25 “Emergency Arbitrator” are not isolated provisions, but jointly constitute an interim measures regime that covers the full arbitral process with close functional connection. Along the dual dimensions of “time stage” and “functional governance,” they form an organically integrated whole with front–back correspondence and internal–external synergy. Its operating logic can be summarized as follows:

Article 25—time front-loading and procedural initiation

Before the tribunal is constituted, where circumstances are urgent, Article 25 provides a channel to apply for the appointment of an emergency arbitrator. This clause focuses on solving the procedural entry question of “who will timely make an emergency decision when the tribunal has not yet been formed,” ensuring parties can obtain interim relief at the start of arbitration and preventing rights from being rendered meaningless.

Article 24—governance closure and procedural continuity

After the emergency arbitrator issues a decision, the subsequent mechanisms for review, adjustment, enforcement, and safeguards are all governed by Article 24. Article 24 systematically provides for the reasoning of applications, provision of security, disclosure of information, dynamic adjustment, accountability, and coordination with courts, forming a complete governance framework for interim measures. Once the tribunal is constituted, the tribunal takes over and conducts proportionality review and necessary correction of the emergency arbitrator’s decision, achieving a smooth procedural transition.

VI. Clause-by-Clause Interpretation of Article 25

Paragraph (1) Applicable period, application content checklist, and service obligation: the starting point of a robust emergency procedure

1. Key points of the provision

This paragraph clearly provides that the applicable period of the emergency arbitrator procedure is “from the commencement of the arbitration proceedings until the constitution of the arbitral tribunal,” defining the time segment in which the procedure operates. The application must state the parties and representatives and effective means of service, the emergency measures and reasons, suggestions on seat/applicable law/language, and materials such as the arbitration agreement. In addition, the applicant has an obligation to serve a copy of the application on the other party(ies) and to inform the institution of the service details (including method and date).

2. Institutional purposes

(1) Filling the relief vacuum: providing timely relief during the key stage before tribunal constitution and aligning temporally with the tribunal’s interim measures power under Article 24, avoiding overlap or conflict.

(2) Structuring the application process: by listing application elements, providing clear guidance to parties, improving institutional screening efficiency, and preventing delay caused by incomplete materials. Including key procedural elements such as seat, applicable law, and language as required contents means that at the emergency initiation stage there is an opportunity to negotiate or determine the core framework of the subsequent arbitration, aiming to reduce later disputes arising from procedural issues and improving efficiency, certainty, and operability of the emergency procedure and even the overall arbitration.

(3) Establishing the procedural bottom line through “mandatory service on the other party”: requiring service distinguishes this route from unilateral interim relief paths [such as SIAC Rules (2025) “protective preliminary orders”], placing greater emphasis on procedural fairness and the right of both parties to be heard.

3. Practical tips

In addition to the contents expressly listed, the application may consider addressing: an explanation of time urgency—describe the risk window in hours to emphasize urgency; an irreparable harm argument—explain how failing to grant emergency measures will lead to difficult-to-remedy losses or procedural obstacles; and an evidence correspondence list—attach evidence numbers for each assertion to form a clear logical chain.

In addition, service procedures must be rigorous. Retain and submit proof such as courier delivery receipts, screenshots of successful email delivery, and instant messaging transmission records, to prevent the other party from delaying the procedure on the ground of not receiving the application.

Paragraph (2) Appointment within two days: an institutional efficiency commitment and the procedure’s initiation threshold

1. Key points of the provision

Where the institution decides that the emergency procedure applies, it shall appoint an emergency arbitrator within 2 days from the date it receives the application and the applicant has prepaid the fees, and shall notify all parties. This paragraph provides that after the institution decides to apply the emergency arbitrator procedure, it has an obligation to complete the appointment within two days from the date it receives the written application and the applicant has prepaid the required fees, and to notify all parties. The time limit clarifies the institution’s duty of active action and uses the applicant’s financial obligation of prepayment as a precondition for initiation.

The HKIAC Rules (2024) and SIAC Rules (2025) strive to appoint an emergency arbitrator within 24 hours after acceptance②②; the LCIA Rules (2020) provide for appointment within three days of the Registrar’s receipt (or as soon as possible)②③; and the ICC Rules (2021) set a two-day limit. ②④The “two days” in this paragraph is slightly broader but still an internationally high-intensity responsiveness commitment, and by using “prepayment” as the initiation threshold, it balances operability.

2. Design and advantages

The core value lies in transforming the efficiency commitment into a clear institutional duty, while using a financial threshold to ensure procedural seriousness:

Quantifying efficiency and improving predictability: the “two days” appointment period clarifies the institution’s response speed and significantly enhances parties’ confidence in timeliness—an important manifestation of procedural predictability.

Balancing efficiency and procedural safety: prepayment as a condition both helps quickly screen applications with true emergency needs and optimize arbitration resources, and provides funding guarantee for subsequent procedure.

Position in international perspective: compared to “24-hour” standards in some rules, “two days” reflects a stable style that balances extreme efficiency with institutional operational realities, allowing time to identify a suitable emergency arbitrator consistent with the overall pursuit of procedural reliability.

3. Practical tips

When submitting the application, parties should simultaneously pay close attention to and promptly complete the prepayment of emergency arbitrator fees. Any delay in payment will directly prevent the “two-day” time limit from starting to run, and may become grounds for the other party to question due process or for the institution to defer appointment. It is recommended that upon filing the application, the applicant confirm payment channels and amounts with the institution to ensure close linkage between filing and payment.

Paragraph (3) Disclosure and challenge: Fairness Safeguards and Anti-Delay Design in Emergency Procedures

1. Key points of the provision

This paragraph provides that matters such as disclosure and challenge of the emergency arbitrator shall be handled by reference to Articles 14 (disclosure obligations) and 15 (challenge procedure) of the Rules. It also creates a strict time limit unique to emergency procedure: a challenge based on disclosed matters must be raised within 2 days of receiving the written disclosure, otherwise the right is forfeited.

2. Institutional purpose and logic

This design addresses the core contradiction in emergency procedure—how to pursue efficiency while upholding the procedural justice baseline of arbitrator neutrality. Its institutional logic manifests as a dual safeguard:

Bottom-line protection of fairness: by applying general disclosure and challenge rules, it clarifies that emergency arbitrators must also meet the highest independence and impartiality standards, ensuring the ethical foundation of the emergency decision’s authority.

Prevention mechanism against procedural abuse: the 2-day objection window is a key anti-delay design, helping reduce the possibility of parties maliciously using challenges to obstruct emergency procedure.

3. Practical tips

For parties (especially respondents): upon receiving the emergency arbitrator’s disclosure, if a challenge is needed, internal evaluation must be launched immediately. A 48-hour response period requires conflict checks, formulation of reasons, and written submission to be converted into a highly compact continuous operation.

For emergency arbitrators and applicants: the emergency arbitrator should follow an even higher standard of prudence and make comprehensive disclosures at the outset of appointment. Applicants should strictly avoid any communication by the emergency arbitrator that could be construed as unilateral contact, to prevent giving the other side procedural pretexts for challenge and to ensure smooth推进 of the emergency procedure.

Paragraph (4) Procedural method: flexible discretion and the bottom-line protection of due process

1. Key points of the provision

This paragraph grants the emergency arbitrator broad procedural discretion, allowing the emergency arbitrator to independently decide the manner of proceeding as deemed appropriate based on the nature and urgency of the request. At the same time, it requires that in any event the emergency arbitrator must act independently and impartially and ensure that each party has a reasonable opportunity to present its case.

2. Institutional function—dual structure of “flexibility” and “bottom line”

This is the core procedural paragraph of Article 25. Through the dual setting of “procedural flexibility” and “minimum due process,” it aims to reconcile the efficiency needs of emergency relief with the inherent value of fairness in arbitration:

High procedural flexibility: the emergency arbitrator may, depending on the case, flexibly adopt written procedure, video hearing, telephone conference, accelerated exchange of evidence, and other forms, and may compress procedural steps and deadlines. This is the key institutional tool for achieving the “immediacy” of emergency relief.

Rigid bottom line of a “reasonable opportunity to be heard”: regardless of simplification, the basic procedural right of each party to express views and respond to the other side’s claims must be guaranteed. This is not only the cornerstone of due process, but also the fundamental prerequisite for the enforceability of emergency decisions and for avoiding revocation or refusal of recognition/enforcement due to procedural defects.

This balanced design aligns with mainstream international practice. For example, when introducing protective preliminary orders, the SIAC Rules (2025) also establish mechanisms requiring that the other party be given an opportunity to be heard within a very short time after measures are taken, under strict time constraints.②⑤ This reveals a common consensus: even in the most urgent procedures, the bottom line of the “right to be heard” must never be breached. Compared with some rules that are vague on procedure form, this paragraph simultaneously clarifies discretion and minimum procedural safeguards, providing a clear authorization and responsibility boundary for the emergency arbitrator.

3. Practical tips

For emergency arbitrators: exercise procedural discretion with a prudent balance between “fairness” and “efficiency.” When selecting a specific procedure, briefly record the reasons for the discretion (e.g., choosing written procedure solely due to extreme time pressure), and ensure that arrangements substantively and non-discriminatorily provide each party an opportunity to be heard.

For parties: fully use the limited procedural steps to present highly focused, key-point submissions and evidence. Parties should not, on the basis of procedural simplification, claim that their due process rights have been substantively deprived.

Paragraph (5) Decision within fourteen days with reasons: a “usable text” for emergency decisions

1. Key points of the provision

This paragraph clearly requires the emergency arbitrator to issue a decision within 14 days of accepting the appointment and state reasons, and imposes a compliance obligation on the parties. The time limit reflects urgency, while the reasoning requirement strengthens legitimacy and acceptability.

This paragraph is consistent with mainstream international practice, such as HKIAC Rules (2024) also requiring emergency decisions within 14 days; ICC Rules (2021) requiring a single form of decision; and LCIA Rules (2020) mandating reasoning (as discussed above).

2. Advantages

Providing a reviewable text: stating reasons not only reflects procedural fairness but also provides the basis for the tribunal’s subsequent modification, suspension, or revocation under Article 25(7), ensuring coherence between the emergency procedure and the arbitral process.

Enhancing enforceability: in China’s arbitration–judicial coordination context, a reasoned decision can serve as supporting material when parties apply to courts for preservation or injunctive relief, helping demonstrate urgency, necessity, and proportionality.

Balancing Efficiency and Rights: The 14-day time limit strikes a balance between the efficiency of emergency relief and the protection of parties' right to present their case, preventing procedural delays and meeting the need for swift resolution of commercial disputes.

3. Practical tips

At the application stage, parties should prepare evidence and legal submissions as fully as possible to assist the emergency arbitrator in producing a well-reasoned, clearly structured decision text within limited time, facilitating possible subsequent court assistance or tribunal review.

Paragraph (6) No concurrent service as arbitrator in the case: role separation and control of first-impression risks

1. Key points of the provision

This paragraph provides that, unless the parties otherwise agree, the emergency arbitrator shall not serve as an arbitrator in the same arbitration relating to the emergency measures. This establishes a “role separation” principle between the emergency arbitrator and the tribunal.

2. Purpose and function

Preventing prejudgment risks and safeguarding independence of merits adjudication: emergency decisions are made based on limited review under urgency; allowing the same person to serve later may cause unconscious influence of prior views, undermining neutrality and objectivity.

Strengthening both the appearance and substance of fairness: role separation prevents reasonable doubts about whether the tribunal has formed a “preconception,” enhancing credibility and acceptability.

Clarifying staged functions and optimizing resource allocation: separating rapid interim handling from full merits review aligns with professional division of labor, allowing each stage to proceed efficiently and with focus.

3. Evaluation of the “principle prohibition, exception by agreement” model

This paragraph adopts a model of “prohibition as principle, agreement as exception” to balance:

Emphasis on procedural safeguards: making non-concurrent service the default highlights priority protection of fairness and avoidance of prejudgment, especially suitable for cases likely to proceed into judicial coordination or enforcement.

Respect for party autonomy: allowing party agreement reflects contractual nature of arbitration and preserves procedural choice where parties trust an arbitrator’s expertise.

Paragraph (7) Tribunal takeover: dynamic review and final corrective authority over interim relief

1. Key points of the provision

This paragraph provides that after the tribunal is constituted, it has full supervisory and corrective power over the emergency arbitrator’s prior decision and may, on its own initiative or upon a party’s application, modify, suspend, or revoke it.

Granting the tribunal review authority is mainstream practice (e.g., ICC Rules (2021), SIAC Rules (2025), LCIA Rules (2020)). This reflects a common consensus: emergency procedures must not erode the tribunal’s core powers.

This paragraph is the core procedural connection between Article 25 and Article 24 (interim measures by the tribunal). It marks a smooth transition of interim relief from the “emergency-arbitrator-led preliminary hemostasis stage” to the “tribunal-led continuous review and dynamic management stage under the complete framework of Article 24.” The tribunal may use this interface to comprehensively employ tools under Article 24, including adjustment, suspension, security requirements, and damages liability, achieving refined management of emergency/interim measures.

2. Institutional concept: linking temporary control to final review

This paragraph is a crucial linkage and check-and-balance clause. Its core concept is to clarify:

The temporary nature of emergency decisions: an emergency arbitrator’s decision is essentially a temporary control measure in a vacuum period, based on limited review, not a final adjudication of substantive rights.

The tribunal’s ultimate authority: as the final adjudicator, the tribunal may fully and deeply hear the case, and has the right to change or否定 emergency decisions to prevent emergency outcomes from improperly binding or prejudging merits.

3. Practical tips

For parties: after the tribunal is constituted, if the emergency decision is no longer appropriate or was erroneous from the outset, the party should proactively apply to the tribunal for modification, suspension, or revocation with detailed reasons and evidence showing changed circumstances or substantive/procedural defects.

For the tribunal: when exercising this authority, it should follow due process and may provide parties an opportunity to comment on changes. Review standards may include whether circumstances materially changed, whether the emergency decision was manifestly unreasonable, or whether it violated due process.

VII. Difficulties of the Emergency Arbitrator Procedure: Challenges from Power Boundaries to Enforcement

However, in analyzing emergency arbitrator procedures, one must clearly recognize that in practice they still face multiple structural difficulties.

(1) Limits of authority

As a special participant in arbitration, the emergency arbitrator differs significantly from ordinary arbitrators in appointment method, boundaries of authority, and duties. Moreover, because the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (hereinafter, the “New York Convention”) predates the emergence of emergency arbitrator procedures in recent years, its definitions do not contemplate the concept of an emergency arbitrator. ②⑥At present, there is debate in both academia and practice as to whether an emergency arbitrator is a “true arbitrator” in the strict sense.

(2) Legal nature and cross-border enforcement difficulties

The legal nature of emergency arbitrator decisions has not been uniformly recognized internationally, directly affecting the effectiveness of cross-border enforcement. The core issue is whether such decisions fall within the scope of the New York Convention, i.e., whether they constitute an “arbitral award” as referred to in the Convention. Article I(1) of the New York Convention provides that the Convention applies to arbitral awards made in a territory other than the territory where enforcement is sought.②⑦ A simple reading is that the New York Convention applies only to arbitral awards (Award) and not to orders (Order). Divergences in legal characterization further aggravate enforcement risks. For example, an ICC survey report points out that in jurisdictions such as Australia, Lebanon, the UAE, Thailand, and Russia, classifying an emergency arbitrator decision as an “award” or an “order” may raise judicial doubts, and more importantly, many countries have not yet expressly recognized the emergency arbitrator system and the effect of its decisions in their domestic arbitration legislation.②⑧

Although jurisdictions such as Singapore and the United Kingdom have legislatively clarified emergency arbitrator procedures, this remains partial practice and has not formed a general consensus.②⑨ Therefore, in the absence of a unified legal framework, cross-border enforcement of emergency arbitrator decisions still faces uncertainty and risks of territorial divergence.

(3) Institutional effectiveness and domestic coordination barriers

Emergency arbitrators have no coercive enforcement power. If their decisions are ignored, the applicant must turn to courts or the subsequently constituted tribunal, which may cause the purpose of relief to fail. In jurisdictions such as China, a mature and stable coordination model between this system and the local judicial system has yet to be established. Although the new Arbitration Law strengthens support for arbitration-related preservation, it has not clearly established the direct enforceability status of emergency arbitrator decisions; their effect often needs to be achieved through “conversion,” potentially reduce their emergency value.

VIII. Linkage Between Articles 24 and 25: Bringing “Emergency Decisions” into the Closed-Loop Governance of Article 24

The emergency arbitrator procedure is not a special arrangement independent of the interim measures system, but a specialized and front-loaded application aimed at the “pre-tribunal power vacuum.” Article 25 should be incorporated into the closed-loop structure of Article 24 (see the Interpretation of Article 24), jointly forming a dynamic, closed-loop interim relief system from emergency intervention to continuous management. Its core linkage is reflected in four key interfaces:

(1) Interface of measure types: guiding emergency discretion through a typological framework

The four categories in Article 24(1) (maintaining/restoring status quo; preventing harm or interference; preservation of assets; preservation of evidence) provide the emergency arbitrator with a clear “dictionary” of measures and a review framework. This enables rapid identification and discretion based on typologized high-frequency scenarios even under extremely short time constraints, ensuring the decision has a solid rules basis and predictability.

(2) Interface of review logic: supporting procedural efficiency through structured reasoning

Article 24(2) requires the application to clearly state the measures requested, the basis, and the reasons—forming the core reasoning structure for interim measures. This structure is particularly important in emergency procedure: the applicant must efficiently complete a rigorous argument in the application as to “what is requested, on what basis, and why urgent.” The quality of the application directly determines whether the emergency arbitrator can make an accurate judgment with limited information, and is the prerequisite for achieving “fast and accurate.”

(3) Interface of risk control: constraining emergency power through continuous governance

The supporting governance mechanisms in Article 24(3)–(6)—including security requirements, disclosure obligations upon material changes, the tribunal’s power to modify/suspend/terminate, and damages liability for wrongful applications—also constitute the “ex post” supervision and correction framework for emergency arbitrator decisions. This ensures emergency power is not abused, decisions can be dynamically adjusted, and erroneous consequences can be remedied, achieving whole-cycle risk control.

(4) Interface of procedural coordination: ensuring effectiveness through parallel mechanisms

Article 24(7) affirms parties’ right to seek interim measures from judicial authorities in parallel, clarifying the complementary relationship between arbitration and courts for interim relief. This forms synergy with the emergency arbitrator procedure in Article 25. In jurisdictions where court coercive power is needed or emergency arbitrator decisions cannot meet specific relief needs, this provision offers a key alternative route, ensuring the practical effectiveness of interim relief and aligning with international practice [such as LCIA Rules (2020 ㉚)] and the reform direction of the new Arbitration Law.

Under the Rules, emergency decisions are fully embedded in the governance closed loop of interim measures, making them both an important tool for urgent needs and a regulated process that is controllable and correctable throughout.

IX. Application Interface with the New Arbitration Law: Building a “Dual-Track Coordination” System of Institutional Emergency Relief and Court Preservation

Article 39 of the new Arbitration Law provides a systematic path for applying for property preservation and conduct injunctions (orders to act or refrain from acting) in the arbitration context. ③①Against this institutional background, the practical value of Articles 24 and 25 of the Rules is particularly reflected in forming a “dual-track coordination and complementary advantages” pattern with judicial preservation mechanisms. This coordination is mainly reflected in three dimensions:

(1) Time coordination: emergency procedure “stops the bleeding” first, and judicial preservation provides coercive force

The core advantage of the emergency arbitrator procedure is response speed. An emergency arbitrator can issue a decision within a very short period, forming “procedural constraints” on parties—for example, ordering maintenance of the status quo, preserving evidence, or requiring cessation of specific conduct. This rapid intervention provides immediate protection and lays a solid factual and legal foundation for later applying to competent courts for coercive property preservation or conduct injunctions. Article 39 of the new Arbitration Law provides that courts shall “handle preservation applications in a timely manner according to law,” forming an effective time interface with the emergency arbitrator’s rapid mechanism and jointly building a seamless relief chain from “immediate constraint” to “compulsory guarantee.”

(2) Functional coordination: leveraging comparative advantages for refined matching of relief tools

Arbitral institutions and courts each have comparative advantages in interim relief, and can operate in parallel and complement each other:

Functional advantages of the emergency arbitrator: better at handling complex “procedural governance” and “maintenance of commercial arrangements,” such as organizing evidence preservation, supervising temporary financial controls, maintaining contract performance status, or making preliminary arrangements on technical issues requiring expertise. In cross-border commercial disputes, it can quickly respond to contract performance chains involving multiple jurisdictions.

Functional advantages of courts: possess irreplaceable coercive force for measures such as “freezing, sealing, and attachment” that require direct control through state power, as well as for enforcing conduct injunctions and imposing penalties for violations.

(3) Risk coordination: using a double-layer liability mechanism to curb abuse and guide prudent applications

Article 39 of the new Arbitration Law expressly provides compensation liability for wrongful preservation applications. This is highly consistent with the international consensus reflected in Article 17G of the Model Law (2006) (costs and damages)③②, and is also consistent with the internal power–responsibility balance of Article 24. Therefore, under a dual-track system where “emergency arbitrator decisions” and “court preservation” run in parallel, any improper or malicious interim relief application may face “double-layer accountability” from the arbitral tribunal (under the rules) and/or courts (under the new Arbitration Law). This increased legal risk significantly raises the cost of abusing emergency procedures and preservation mechanisms, helping guide parties to more prudently evaluate urgency, necessity, and proportionality, purifying the procedural environment and preventing abuse of interim relief.

Conclusion: The Institutional Significance of the Integrated Interim Relief Mechanism of Articles 24 and 25

Articles 24 and 25 of the Rules together constitute a logically rigorous and mutually reinforcing integrated interim relief system. Its significance lies not only in filling a procedural gap, but also in upgrading interim relief from an “emergency tool” to a “sustainable procedural governance” paradigm through systematic design.

The value of Article 24 lies in constructing interim measures as a complete governance closed loop that includes typologized measures, review standards, supporting security, dynamic adjustment, and accountability for wrongful applications, making interim orders sustainably adaptable and responsibility-constrained. Article 25, on this basis, front-loads the relief window to the “power vacuum” before tribunal constitution, achieving immediate intervention against urgent risks through the emergency arbitrator procedure. Together, they form seamless linkage from “emergency hemostasis” to “whole-process management.”

This design is highly consistent with mainstream international practice. Its framework aligns with the risk-control model formed after the 2006 revision of the Model Law, and echoes the structure, timelines, and review arrangements of emergency relief mechanisms in major arbitral institutions such as the ICC, HKIAC, and LCIA, reflecting the Rules’ international perspective.

More importantly, against the institutional background of the new Arbitration Law—which clarifies paths for arbitration-related preservation and conduct injunctions, emphasizes timely judicial handling, and establishes liability for wrongful applications—the Rules show stronger adaptability to the China context and stronger coordination efficiency. They can rapidly stabilize commercial relationships through institutional emergency procedures, form “dual-track coordination” with courts’ coercive enforcement mechanisms, and effectively curb abuse through built-in responsibility constraints, thereby systematically enhancing the timeliness, reliability, and enforceability of parties’ rights protection.