One of the significant developments in arbitration witnessed in Rivers State of Nigeria in 2019 was the enactment of Rivers State Arbitration Law (the Law). The Law applies to arbitration in Rivers State except where the parties expressly agree that another arbitration law will apply. Consistent with the principle of party autonomy in arbitration, parties outside Rivers State can adopt the provisions of the Law as the governing arbitration law. Interestingly, the new law and the Arbitration Applications Rules contained in the Law made copious provisions regarding an Emergency Arbitrator (EA).
Generally, an EA is one who is empowered to issue interim reliefs or measures which may be necessary before the formation of an arbitral tribunal. In other words, the EA system or procedure seeks to provide a mechanism where a party to an arbitration agreement can secure urgent interim and immediate measures that cannot await the constitution of an arbitral tribunal. Before the introduction of the EA in international arbitrations, parties to an arbitration agreement could only resort to the regular courts to secure interim reliefs before an arbitral tribunal is formed. The EA procedure can be found in the rules of many of the leading arbitration institutions in the world.
The Law recognises and makes robust provisions for an EA. This is a welcome development and groundbreaking as it relates to arbitration practice in Rivers State.
We shall, in this article, examine the provisions of the Law on EA, procedures for commencement of emergency arbitration proceedings within the context of the Law and highlight some of the challenges inherent in the Law.
Emergency Arbitrator in the Law
Under the Rivers State Arbitration Law, a party who requires emergency relief may at the time of filing a request for a matter to be referred to arbitration or at any time after such application but before the constitution of the arbitral tribunal apply for the appointment of an EA. The application is to be made to any arbitral institution designated by the parties or the High Court of Rivers State where the parties did not designate any arbitral institution. Where the arbitral institution or Court accepts the application, it shall appoint an EA within two business days after the date the application is received. Upon the appointment of the EA, the arbitral institution or the Court is required to immediately notify the EA and any other party named in the application. This notification must be done within two business days and every written communication from the parties shall be submitted directly to the EA with a copy to the other party. A party who is not satisfied with the person appointed as the emergency arbitrator may challenge the appointment within three days of receipt of the notification of the appointment; or from the date when that party was informed of the facts and circumstances on which the challenge is based.