Emergency Arbitration in Investment Treaty Arbitration

Abstract This chapter discusses emergency arbitration in the context of investor-State dispute settlement (ISDS), and specifically, investment treaty arbitration. The key distinction between emergency arbitration in commercial arbitration and in investment treaty arbitration concerns the application of the second principle of emergency arbitration, namely that the parties must consent to emergency arbitration. Several jurisdictional issues may arise in an investment treaty emergency arbitration, which will not arise in the commercial context. Aside from various preliminary issues, including whether the claimant is a qualifying investor with a protected investment under the applicable treaty, these include issues of State consent, the application of cooling-off periods, and the treatment of most-favoured-nation (MFN) clauses. In addition, the principles applicable in an emergency arbitration in the commercial context to the standards applied to determine the application, and the measures that the emergency arbitrator may impose, are equally applicable in the ISDS context. Finally, the same enforcement issues which arise for an emergency arbitration decision in the commercial context are likely to arise in the ISDS context, and concerns surrounding State sovereignty might also be invoked as an additional shield in enforcement proceedings.