Interim relief issued in NCAC’s first Emergency Arbitration Proceeding
The National Commercial Arbitration of Cambodia (“NCAC”) in its first emergency arbitration case recently issued an award on interim measures. This is the first-ever award issued by the emergency arbitrator following NCAC’s adoption of its new rules (“New NCAC Arbitration Rules”) on 28 March 2021 which incorporated emergency procedures into its arbitration rules.
Emergency arbitrator: A novel mechanism
The concept of the emergency arbitrator is a novel mechanism in the arbitration procedure which allows the disputing party to apply for urgent interim measures before an arbitral tribunal has been formally formed. An arbitral institution appoints an emergency arbitrator on an urgent basis specifically to deal with an interim relief application before an arbitral tribunal is selected and formed to deal with the parties’ substantive dispute.
Protection of rights before the commencement of formal proceedings
Emergency arbitration offers each party a necessary way to secure and protect each of their rights before formal proceedings begin. It is suitable for those who want to protect their assets and evidence that might otherwise be modified or lost before the final award is issued such as when the assets might be transferred by a party before the arbitration tribunal has been appointed.
Before the New NCAC Arbitration Rules came into effect, parties applying for an interim measure had to wait until the arbitral tribunal had already been formed and during this waiting period, the parties were only able to seek urgent interim relief from a domestic court which usually took time, was costly and could compromise the case’s confidentiality. However, with the interim relief offered by the new NCAC emergency procedure, all interim measure decisions will now be rendered by the emergency arbitrator within 15 calendar days from the date of his/her appointment.
Grounds for interim measure application
Procedurally and prior to the arbitral tribunal’s formation, parties wishing to seek emergency interim relief may file an interim measure application for an emergency arbitrator’s decision at the same time or after filing the Notice of Arbitration with the NCAC’s General Secretariat. According to the new NCAC rules, the application for interim measure issued by Emergency Arbitrator shall include: (a) nature of the measure sought, (b) the reasons why the party making the application is entitled to such measure; and (c) a statement certifying that all other parties have been provided with a copy of the application or, if not, an explanation of the steps taken in good faith to provide a copy or notification to all other parties.
The effective date of the NCAC rules
The new NCAC rules came into force on 28 June 2021. The application for an interim measure issued by the emergency arbitrator and other provisions on emergency arbitrator procedures were stipulated in Article 10 to Article 23 under Chapter Three of the New NCAC Arbitration Rules.
This alert is for general information only and is not a substitute for legal advice.