Cardozo International & Comparative Law Review
Abstract
The emergency arbitration procedure is widely and ever increasingly used by parties around the world. Because of that, the main question in the past decade has shifted from whether emergency arbitration will endure, to how it is that emergency proceedings became a fixture of international arbitration despite a body of academic literature that doubted its viability. Answering this question, this Article shows that the international arbitral rules have evolved in response to parties' demands and concerns, and this evolution contributed to the procedure's popularity. The Article then discusses how emergency arbitrators, legislators, and national courts devised solutions to problems relating to emergency arbitration systems identified by academics and practitioners concerning: (1) the development and harmonization of the legal standard that applies in emergency proceedings; and (2) the enforceability of emergency awards and orders. These changes and innovations are a direct response to the question of what made emergency arbitration an enduring, if imperfect, mechanism in international arbitration. International arbitration is a creature of contract, embedded in a global system of sovereigns with contesting demands, that must constantly evolve to meet the needs of parties to obtain their ex ante buy-in and the legal requirements of sovereign jurisdiction that validate their existence ex post. The emergency arbitration procedure adjusted to these competing demands and was therefore able to establish itself within private international law.
Disciplines
Comparative and Foreign Law | International Law | Law | Legislation
Recommended Citation
Katarina R. Krasulova,
Should I Stay or Should I Go: The Evolution of Emergency Arbitration Procedure within Private International Law,
6
Cardozo Int’l & Compar. L. Rev.
819
(2023).
Available at:
https://larc.cardozo.yu.edu/ciclr/vol6/iss3/5