Rule 48: Interim measure before constitution of tribunal (Emergency Arbitration )

48.1. A party requiring Emergency Relief may submit an application (the “Application”) for the appointment of an emergency arbitrator to Centre (a) before, (b) concurrent with, or (c) following the filing of a Notice of Arbitration, but prior to the constitution of the arbitral tribunal.

• the names and ( in so far as known) the addresses, facsimile numbers and/or email addresses of the parties to the Application and of their representatives;
• a description of the circumstances giving rise to the Application and of the underlying dispute referred to arbitration;
• a statement of the Emergency Relief sought;
• the reasons why the applicant needs the Emergency Relief on an urgent basis that cannot await the constitution of an arbitral tribunal;
• the reasons why the applicant is entitled to such Emergency Relief;
• any relevant agreement and, in particular, the arbitration agreement;
• comments on the language, the seat of the Emergency Relief proceedings, and the applicable law;

48.2. The Application may contain such other documents or information as the applicant considers appropriate or as may contribute to the efficient examination of the Application.

48.3. Any application for emergency interim relief shall be accompanied by payment of the non-refundable registration fee and the requisite deposits under these Rules towards the Emergency Arbitrator’s fees and expenses for proceedings pursuant to this Schedule I. In appropriate cases, the Centre may increase the amount of the deposits requested from the party making the application. If the additional deposits are not paid within the time limit set by the Centre, the application shall be considered as withdrawn.

48.4. If the parties have agreed on the seat of the arbitration, such seat shall be the seat of the proceedings for emergency interim relief. Failing such an agreement, the seat of the proceedings for emergency interim relief shall be Bhutan, without prejudice to the Tribunal’s determination of the seat of the arbitration under Rule 28.

48.5. If Centre determines that it should accept the Application, Centre shall seek to appoint an emergency arbitrator within one day after receipt of both the Application and the Application Deposit.

48.6. Prior to accepting appointment, a prospective Emergency Arbitrator shall disclose to the Centre and parties any circumstances that may give rise to justifiable doubts as to his impartiality or independence. Any challenge to the appointment of the Emergency Arbitrator must be made within two days of the communication by the Centre to the parties of the appointment of the Emergency Arbitrator and the circumstances disclosed.

48.7. Where an emergency arbitrator dies, has been successfully challenged, has been otherwise removed, or has resigned, Centre shall seek to appoint a substitute emergency arbitrator within one day. If the emergency arbitrator is replaced, the Emergency Relief proceedings shall resume at the stage where the emergency arbitrator was replaced or ceased to perform his or her functions, unless the substitute emergency arbitrator decides otherwise.

48.8. Once the emergency arbitrator has been appointed, Centre shall communicate the appointment to the parties to the Application and shall communicate the case file to the emergency arbitrator. Thereafter, the parties shall communicate with the emergency arbitrator through Centre.

48.9. The Emergency Arbitrator shall, as soon as possible but, in any event, within two days of his appointment, establish a schedule for consideration of the application for emergency interim relief. Such schedule shall provide a reasonable opportunity for the parties to be heard, but may provide for proceedings by telephone or video conference or on written submissions as alternatives to a hearing in person. The Emergency Arbitrator shall have the powers vested in the Tribunal pursuant to these Rules, including the authority to rule on his own jurisdiction, without prejudice to the Tribunal’s determination.

48.10. Rule 49 shall apply, mutatis mutandis, to any Emergency Relief granted by the emergency arbitrator.

48.11. The Emergency Arbitrator shall make his interim order or Award within 7 days from the date of on which the file was transmitted to emergency arbitrator. In exceptional circumstances, the Centre may extends the time. No interim order or Award shall be made by the Emergency Arbitrator until it has been approved by the Centre as to its form.

48.12. Any Emergency Decision shall :

• be made in writing;
• state the date when it was made and reasons upon which the Emergency Decision is based, which may be in summary form (including a determination on whether the emergency arbitrator has jurisdiction to grant the Emergency Relief); and
• be signed by the emergency arbitrator.

48.13. Any Emergency Decision shall have the same effect as an interim measure granted pursuant to Rule 49 of the Rules and shall be binding on the parties when rendered.

48.14. The Emergency Arbitrator shall have no power to act after the Tribunal is constituted. The Tribunal may reconsider, modify or vacate any interim order or Award issued by the Emergency Arbitrator, including a ruling on his own jurisdiction. The Tribunal is not bound by the reasons given by the Emergency Arbitrator.

48.15. Any Emergency Decision ceases to be binding :

• if the emergency arbitrator, court or the arbitral tribunal so decides;
• upon the arbitral tribunal rendering a final award, unless the arbitral tribunal expressly decides otherwise;
• upon the termination of the arbitration before the rendering of a final award; or
• if the arbitral tribunal is not constituted within 45 days from the date of the Emergency Decision. This time limit may be extended by agreement of the parties or, in appropriate circumstances, by Centre.

48.16. Centre shall determine the cost of emergency arbitration in accordance with Schedule I and the Emergency arbitrator shall apportion the costs. For domestic arbitration, the cost of emergency arbitration shall be treated as separate and shall not subject to apportionment by the Tribunal on the final award.

48.17. The emergency arbitrator may not act as arbitrator in any arbitration relating to the dispute that gave rise to the Application and in respect of which the emergency arbitrator has acted, unless otherwise agreed by the parties to the arbitration.

48.18. The Emergency Arbitrator Procedure shall be terminated if a Notice of Arbitration has not been submitted by the applicant to Centre within 7 days of Centre’s receipt of the Application, unless the emergency arbitrator extends this time limit.

48.19. Where the Emergency Arbitrator Procedure is terminated without an Emergency Decision, the Centre may determine costs of the Emergency Relief proceedings and Centre may apportion such cost.