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The Report provides a useful categorisation of the most commonly encountered jurisdictional grounds for challenging an EA application. On admissibility, the Report raises an interesting point in relation to the “urgency” test; whilst an applicant must establish a prima facie case that a measure is needed urgently to have its EA application admitted, in practice an EA might consider the urgency as a substantive requirement which can result in a higher standard of proof on this issue. In our experience, a party’s subjective view of the urgency of the situation it finds itself in can often differ significantly from an objective view of the same facts. This point also emphasises the need for a party to move quickly; often a delay in seeking advice or taking emergency steps can fatally undermine a case on urgency.
The Report notes that an EA enjoys a wide procedural discretion to tailor an EA proceeding to the needs of the case. A wide variety of case management techniques are being used to achieve speed, efficiency and consistency across EA proceedings, whilst trying to balance the competing requirement of due process. Examples include telephone-only case management conferences, no cross examination of witnesses, documents-only decisions with no hearings, and limiting the scope, number and length of submissions.
The Report indicates that it is becoming common practice for EAs to apply criteria developed in the granting of interim measures in accordance with the standards of international arbitration practice. In particular, in addition to the standard criterion, namely urgent relief that cannot await the constitution of the arbitral tribunal, EAs often consider, inter alia, the likelihood of success on the merits, the risk of aggravation of the dispute and the principle of proportionality. The gradual adoption of such recognised criteria assists parties in knowing how to frame, and respond to, such applications.
With the exception of New Zealand, Hong Kong and Singapore, at present there are no national laws providing for the enforcement of an EA’s decision. The Report discusses the inevitable challenges to the enforcement of EA’s decisions which follow from this:
One of the most interesting points addressed in the Report, not least given the recognised enforcement issues, is how EA applications are being used, on occasions, as tactical weapons. The Report identifies four reasons for this.
Where a party has a reasonable case on urgency, there are (potentially considerable) tactical advantages that might be gained from an EA application, even if that application may ultimately not be successful or if a decision of the EA cannot be enforced.
Ben Carroll would like to thank Margarita Karkantzou for her assistance in preparing this article.
21 May 2019
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