Author: Jakob Horn*
Published: April 2021
Description: The emergency arbitrator is an instrument to obtain preliminary relief before a tribunal is established. With its increasing application in recent years, questions arise around its nature and the enforceability of emergency awards. This article argues that emergency arbitrators are arbitrators and emergency awards are enforceable under the New York Convention. It first argues that the terms “arbitrator” and “arbitral award” can be interpreted in an evolutionary manner allowing inclusion of new developments in the Convention, even though the drafters did not expressly consider these developments. Additionally, it contends that emergency awards are enforceable because under the Convention after accepted methods of treaty interpretation are applied, awards do not have to be final, but merely binding to be enforceable. The article concludes by proposing ideas on how arbitration tribunals can improve emergency arbitrator rules to facilitate the enforceability of emergency awards.
* The author is currently a legal trainee (Rechtsreferendar) at the Higher Regional Court of Berlin Germany (Kammergericht). The article builds on insights the author found in his dissertation, Der Emergency Arbitrator und die ZPO [The Emergency Arbitrator and the German Civil Procedure Code], Mohr Siebeck 2019, ISBN 978-3-16-156939-5.