To ensure the accurate understanding and application of the provisions concerning the Emergency Arbitrator Procedures in the current Arbitration Rules (the "Arbitration Rules") of the China International Economic and Trade Arbitration Commission ("CIETAC"), and in light of the background, objectives and practices of such mechanism, the following interpretation of Article 23(2) of the Arbitration Rules is formulated pursuant to Article 87(2) of the Rules, which provides that "[t]hese Rules shall be interpreted by CIETAC."

It should be noted that this Interpretation serves solely as an interpretation of Article 23(2) of the Arbitration Rules and does not amend or supplement this provision, nor does it thereby expand or diminish any relevant rights and obligations of the parties. This Interpretation applies to all emergency arbitrator proceedings that CIETAC has administered, is administering or will administer.

I. Background and Purposes

1. Responding to the Needs of Developments in International Commercial Arbitration Practice

The emergency arbitrator procedure is an interim relief mechanism widely adopted in international commercial arbitration, aiming to provide the parties with urgent conservatory measures before the formation of the arbitral tribunal and to safeguard their rights. In international arbitration practice, the availability of interim relief from an emergency arbitrator does not depend on express provision in domestic arbitration legislation. Such relief may also be granted on the basis of the parties' agreement, including their choice of arbitration rules. The mechanism has become a procedural tool commonly available in international arbitration, and the major international arbitration institutions have all incorporated emergency arbitrator mechanisms into their arbitration rules. Against this background, the CIETAC Arbitration Rules provide that the parties enjoy equal rights to the emergency arbitrator procedures, which help equally protect the parties' lawful rights and interests.

2. Broadening the Procedural Rights Available to the Parties Within the Chinese Legal Framework

The Arbitration Law of the People's Republic of China (the "Arbitration Law") vests the power to order conservatory measures within China in the People's Courts. However, it does not prohibit the parties from applying to an emergency arbitrator for interim relief binding upon both parties, on the basis of their agreement and pursuant to the arbitration rules. Nor does the Arbitration Law deny the legal effect of interim relief granted by an emergency arbitrator within China in accordance with the relevant laws. Consistent with the fundamental principle of party autonomy under the Arbitration Law, the emergency arbitrator procedure, as a procedural right, merely provides temporary relief to safeguard the parties' rights and interests and does not resolve the substantive disputes between them. It constitutes a legitimate procedural right for parties to apply for interim relief from an emergency arbitrator pursuant to the agreed arbitration rules, which is consistent with the Arbitration Law.

3. Meeting Parties' Needs for Interim Protection Across Multiple Jurisdictions

To protect the parties from irreparable harm, many countries and jurisdictions also recognize the legal effect of interim relief granted by emergency arbitrators. In line with arbitration practice across multiple jurisdictions and out of respect for party autonomy, the CIETAC Arbitration Rules provide for the Emergency Arbitrator Procedures and expressly permit the parties to apply for the Emergency Arbitrator Procedures in accordance with "the applicable law" or "the agreement of the parties". An emergency arbitrator's decision is binding upon both parties, and a party may apply for its enforcement in accordance with the law of the place of enforcement. "The applicable law" and "the agreement of the parties" are two independent grounds for an application under the Emergency Arbitrator Procedures, each with its own scope of application. The fact that one ground is satisfied in a particular case does not negate the scope of application of the other. The purpose is to fully encompass the circumstances in which interim relief from an emergency arbitrator may be available in international commercial arbitration, to protect the parties' lawful rights and interests in a timely manner, and to ensure the effective enforcement of arbitral awards.

II. Systematic Interpretation and Interpretation of the Provision

1. Systematic Interpretation

Under Article 4 of the General Provisions of the Arbitration Rules, where the parties agree to refer their dispute to CIETAC for arbitration, they are deemed to have agreed to arbitration in accordance with the Arbitration Rules, and they may also agree to modify the Arbitration Rules. Accordingly, by choosing the CIETAC Arbitration Rules, the parties accept all the procedural mechanisms contained therein, including the Emergency Arbitrator Procedures provided for in Article 23(2). Where the parties have not expressly excluded the Emergency Arbitrator Procedures, those procedures may be applied pursuant to the Arbitration Rules. Further, under Article 87 of the Arbitration Rules, CIETAC has the final authority to interpret its Arbitration Rules. CIETAC's interpretation of the Emergency Arbitrator Procedures therefore has a clear basis in the Arbitration Rules, and the Arbitration Rules shall be applied in accordance with CIETAC's final interpretation.

2. Interpretation of the Provision

2.1 Article 23(2) of the Rules

"In accordance with the applicable law or the agreement of the parties, a party may apply to the Arbitration Court for emergency relief pursuant to the CIETAC Emergency Arbitrator Procedures (Appendix III). The emergency arbitrator may decide to order or award necessary or appropriate emergency measures. The decision of the emergency arbitrator shall be binding upon both parties."

2.2 Principal Contents of This Interpretation

To ensure an accurate understanding and application of the basis under the Arbitration Rules for parties to apply for interim relief from an emergency arbitrator, "the applicable law" and "the agreement of the parties" in this provision are interpreted as follows:

(1) The Applicable Law

In this provision, "the applicable law" refers broadly to the relevant laws under which the interim relief granted by an emergency arbitrator may have legal effect, including the law applicable to the arbitral proceedings as determined by reference to the parties' agreement, the seat of arbitration, and the location of the arbitration institution etc. Further, given that the law applicable to the arbitral proceedings and the law of the actual place of enforcement in cross-border arbitration may fall within different jurisdictions, the relevant laws of the place of enforcement may also be taken into account to facilitate the enforcement of interim relief granted by an emergency arbitrator.

(2) The Agreement of the Parties

In this provision, "the agreement of the parties" is premised on the principle of party autonomy and is determined by reference to the parties' mutual consent. "The agreement of the parties" primarily refers to two scenarios:

First, the parties expressly agree to apply the emergency arbitrator procedures for interim relief in their arbitration agreement or arbitration clause. In international arbitration practice, however, the parties rarely separately agree on the application of the emergency arbitrator procedures. Requiring a specific agreement separately concluded as the basis for application could readily give rise to procedural disputes and impede the smooth progress of arbitration and the enforcement of awards. Accordingly, this scenario is not predominant in practice, and the Arbitration Rules do not treat a separate agreement as the sole interpretation of the agreement of the parties.

Second, the arbitration rules chosen by the parties expressly provide for interim relief under the emergency arbitrator procedures. By agreeing in their arbitration clause to the application of those arbitration rules, the parties are deemed to have agreed to all provisions of those rules. Where those rules include the emergency arbitrator procedures and the parties have not excluded their application, the application of those procedures forms an inherent part of the parties' agreement. Pursuant to Article 4(2) of the Rules, the principal circumstances in which the agreement of the parties to apply the Emergency Arbitrator Procedures is established include any of the following:

a. The parties agree to refer their dispute to CIETAC for arbitration;
b. The parties agree to arbitration in accordance with the CIETAC Arbitration Rules;
c. The parties agree to the application of CIETAC's specialized arbitration rules, which also provide for the application of the CIETAC Rules;
d. The parties agree to the application of other arbitration rules, with CIETAC performing the administrative functions, and those rules or CIETAC's procedural provisions for administering cases under those rules provide for the application of the Emergency Arbitrator Procedures.

In each of the above circumstances, if the parties wish to exclude the Emergency Arbitrator Procedures, they shall expressly agree to do so separately in writing.

(3) "The applicable law" and "the agreement of the parties" in this provision are two independent, parallel and alternative conditions. They may be satisfied separately or jointly in different cases. Satisfaction of either condition is sufficient for a party to apply to an emergency arbitrator for interim relief. Neither condition displaces the other, and they operate consistently alongside one another. The emergency arbitrator has the power under the Arbitration Rules to make a decision granting interim relief.

The Emergency Arbitrator Procedures under the CIETAC Arbitration Rules provide a procedural tool for seeking recognition and enforcement of interim relief in different jurisdictions. The mechanism complies with China's legal framework for arbitration, fully respects party autonomy and accords with generally accepted international commercial arbitration practice, providing Chinese and foreign parties with comprehensive procedural protection in relation to interim relief.

CIETAC remains committed to provide Chinese and foreign parties with high-quality, efficient, professional and international commercial arbitration services.