The Arbitration Foundation of South Africa (AFSA) is the latest of a growing number of leading arbitral institutions to incorporate the appointment of an emergency arbitrator and emergency arbitration provision into its new international rules (the new rules). This is a welcome step by AFSA in promoting South Africa as a modern arbitration destination.
The new rules came into force on 1 June 2021. On 2 June, we published a brief overview of the key features of the new rules. This update focuses on the concept of an emergency arbitrator as envisioned in the new rules - what it entails, the powers of the emergency arbitrator and the anticipated benefits of this new arbitral role.
In short, emergency arbitrators are appointed by the Secretariat of AFSA, on application by the relevant party, to expeditiously adjudicate on an urgent dispute between parties to an arbitration agreement. Importantly, emergency arbitrators enable parties to obtain urgent relief before the relevant arbitral tribunal is constituted, which circumvents the need to proceed on grounds of urgency before a South African Court. Instead, parties may now invoke Article 11 of the new rules to deal with time-sensitive matters, while at the same time maintaining the arbitral cornerstones of privacy, efficiency, impartiality and expertise.
AFSA's introduction of Article 11 to provide for the appointment of an emergency arbitrator sees it join the company of other leading arbitral institutions such as the London Court of International Arbitration, the Stockholm Chamber of Commerce, the Hong Kong International Arbitration Centre, the Singapore International Arbitration Centre and the International Centre for Dispute Resolution.
Appointment of the emergency arbitrator
For an emergency arbitrator to be appointed, a written application to the AFSA Secretariat must be made prior to the constitution of the arbitral tribunal or appointment of the arbitrator. This request must be communicated to all other party/ies to the arbitration. In addition to containing the particulars of each party, the application must be accompanied by the timeous payment of all relevant fees and deposits as detailed in Article 11(4) of the new rules. From a substantive perspective, the application must set out, among other things:
- The specific grounds for requiring the appointment of an emergency arbitrator;
- The specific claim, with reasons, for "Emergency Measures" (defined in Article 11(1) as urgent or conservatory measures that cannot await the constitution of an arbitral tribunal); and
- Any relevant agreement and the arbitration agreement upon which the application is made.
Should the Secretariat accept the application, the AFSA Court must appoint an emergency arbitrator within 48 hours of receipt of the application.
The powers of the emergency arbitrator
The emergency arbitrator is given a wide discretion to conduct the proceedings in any manner they deem appropriate (Article 11.9), subject to certain terms and conditions aimed at ensuring a streamlined process.
As an example, an emergency arbitrator is duty-bound to establish a procedural timetable for the emergency proceedings within 2 days of receipt of the case file and must determine the claim as soon as possible thereafter, but no later than 14 days after their initial appointment. Any determination of the emergency arbitrator must be communicated in writing to the parties.
The above timeline provides for an objectively robust period for the efficient and speedy resolution of any dispute, bearing in mind that any emergency decision may be confirmed, varied, discharged or revoked, in whole or in part, by order or award made by the arbitral tribunal, on application by any party or at the tribunal's own initiative.
Interestingly, under Article 11.8 of the new rules, the emergency arbitrator may not act as an arbitrator in any future arbitration relating to the dispute, unless otherwise agreed by the parties.
Benefits of an emergency arbitrator
Emergency arbitration is procedurally novel in allowing for urgent relief prior to the constitution of the arbitral tribunal. This empowers each party to fast, effective relief without the risk of another party frustrating urgency by insisting on a detailed appointment process which was not designed with urgent proceedings in mind. Historically, this has been dealt with by providing parties with the right to approach courts for urgent relief outside of the arbitration agreement, a mechanism which often undermines the benefits of arbitration, being, amongst others, expediency and confidentiality.
Fortunately, AFSA emboldens the emergency arbitrator with a wide discretion to allow for sufficient flexibility in proceedings, in the process giving the emergency arbitrator the right to deal with each case as it appears before them.
Astutely, AFSA expressly indicates that Article 11 will not prejudice any party's right to apply for interim or conservatory measures from a competent authority at any time. This provision should, therefore, remove the potential for confusion as to which forum is appropriate in any set of urgent circumstances.
While the importance and effectiveness of an emergency arbitrator in South Africa is yet to be conclusively determined, given that the new rules only recently came into effect, international arbitral trends suggest an increasing use of emergency arbitrators in the timeous resolution of urgent disputes abroad.