Advancing Emergency Arbitration in Investor-State Disputes: A Call for Broader Institutional Adoption

The emergency arbitrator mechanism is a procedural innovation that has become widely available in commercial arbitration. However, the same cannot be said about the emergency arbitrator in the Investor-State Dispute Settlement (hereinafter ISDS) context. This article identifies the discrepancy between the commercial and ISDS settings and compares the rules of three prominent institutions in depth. It also identifies contentious points that prevent wider adoption of this mechanism in the ISDS context and proposes amendments to facilitate wider adoption.

The article argues that wider adoption could benefit both investors and State parties, provided that emergency relief rests on State consent and includes safeguards for procedural fairness. The proposed institutional model addresses cooling-off periods, the temporal application of rules and the time needed for States to respond. Institutional amendments must operate within the applicable treaty and for International Centre for Settlement of Investment Disputes (hereinafter ICSID), the Convention; they cannot alone create consent to emergency arbitration (hereinafter EA).