Emergency Relief in Investment Arbitration: Were We Too Cautious?

29 April 2026 marked twelve years since the first publicly known emergency arbitrator decision in an investment‑treaty case—TSIKInvest LLC v. Republic of Moldova—entered the public domain.  Relying on the recent amendments to the Stockholm Chamber of Commerce (“SCC”) Rules that introduced an emergency arbitration mechanism without a carve‑out for investment disputes, the investor sought—and obtained—an interim order requiring Moldova to stay enforcement of measures aimed at removing the investors from their shareholdings in local banks.

The arrival of a procedure that allows a foreign investor to seek non‑monetary relief against a State within five business days of filing—before a formal request for arbitration is lodged, and potentially without the State’s participation or even a hearing—was met with caution (see here).  While its potential to safeguard investors’ rights during the often-lengthy process of tribunal constitution was readily acknowledged, its appropriateness in the investment treaty context was open to doubt (see here).

Since that first decision, thirteen known emergency arbitrator rulings have been issued. With this jurisprudence now large enough to analyse and continuing to grow, the time is right to ask how this procedural device has fared in investment arbitration.  Have the early concerns been borne out or overstated?  And, crucially, should the “Stockholm story” become a global one?  This post surveys those early concerns in light of the known emergency arbitrator decisions and invites further consideration of whether emergency arbitration should be adopted more widely in investment treaty proceedings.

A Word of Caution

Early cases of emergency interim relief in investment arbitration prompted doubts as to its appropriateness as an Investor-State Dispute Settlement (“ISDS”) mechanism.  On one view, the slow rhythm of investment treaty arbitrations—where investors may wait many months for a tribunal to be constituted before applying for interim measures—might be seen to reinforce the case for an emergency relief procedure.  At the same time, the distinctive character of investment arbitration as a system for resolving public‑law disputes between private actors and sovereign states, counselled restraint (see here).

Much of the caution stemmed from the sovereign status of States as respondents, particularly in relation to (i) the manner in which they express and condition their consent to investor-state dispute settlement, (ii) the difficulty of ordering and enforcing non-monetary relief against sovereigns, and (iii) the practical challenges States face in responding to emergency applications (see here). Critics warned that to disregard those features and simply ‘copy and paste’ the emergency arbitrator procedure into investment treaty arbitration could create difficulties (see here).

Were We Too Cautious?

To assess how emergency relief has performed as an ISDS mechanism, it is useful to examine the fourteen known decisions against the principal challenges identified above.  Five decisions have been published in full1 and others have been reported in the legal press.2 All known decisions were rendered under the SCC Rules, which remain the principal source of emergency arbitrator jurisprudence in this area.  (Although SIAC and CIETAC have since introduced emergency arbitration mechanisms, there are no reported investor‑State emergency decisions under those rules.)   

Difficulty in Responding to Emergency Relief Applications

A common concern is that States may be ill-equipped to respond to emergency relief applications with the requisite speed and agility.  States often lack standard responding procedures and sufficient disputes capabilities, including access to counsel, which can impede their ability to defend themselves on short notice (see here).  

The record, however, shows that States that chose to participate in emergency proceedings were able to do so meaningfully.  Georgia, Poland and Armenia, for example, all took part in emergency proceedings and filed substantive submissions on points of law and procedure.  Importantly, where States have requested adjustments to default emergency timeframes, emergency arbitrators have generally shown flexibility.  In State Development Corporation “VEB.RF” v. Ukraine, for example, the Supreme Court of Ukraine rejected the State’s due‑process complaint that it was unable to present its case because a five‑day response period fell on non‑working days, noting that that deadline had been extended at Ukraine’s request (see here).

Several States, such as Moldova, Benin, and Mongolia, did not engage with emergency proceedings. It is not always clear, however, whether that decision reflected a strategic choice or a genuine inability to mount a defence within the compressed timeframes, especially where States had previously been subject to emergency relief proceedings.

Difficulty of Ordering Non-Monetary Relief Against a State

Ordering non‑pecuniary relief against a State can pose challenges. Tribunals have repeatedly stressed that arbitrators ‘must be mindful when issuing provisional measures not to unduly encroach on the State’s sovereignty and activities serving public interests’ (see, for example, Caratube v. Kazakhstan, Decision on the Claimant’s Request for Provision Measures, 4 December 2014, para. 121).

Reported cases do not, however, reveal any general reluctance on the part of tribunals to order non‑monetary relief against sovereigns.  Emergency arbitrators have granted such relief, in whole or in part, in nine of the fourteen reported decisions.  The measures ordered have included stays of administrative enforcement proceedings and recently enacted legislation; stays of court proceedings in the respondent State; orders restraining the termination of the concession agreements; and measures ensuring access to counsel (see here).

This does not mean that emergency arbitrators paid no heed to the risk of interfering with sovereign powers.  Where that risk was palpable, they sought to balance protection of the claimant’s rights against preservation of the State’s essential regulatory powers, even when the State did not participate.  In Mohammed Munshi v. Mongolia, for example, the emergency arbitrator declined the investor’s request for release from local detention despite acknowledging a serious risk to the claimant’s life and health.  The emergency arbitrator reasoned that the relief requested would interfere with Mongolia’s justice system and impose a considerable burden on the State.

Consent and Cooling-Off Requirements

Many investment treaties require parties to attempt amicable settlement, often for a period of six months, before arbitration may be commenced (see here).  Emergency arbitration might appear incompatible with these “cooling‑off” provisions because it can force parties into arbitration before such discussions have been concluded, or even begun (see here).

Emergency arbitrators who have considered the issue found that a cooling‑off period does not preclude applications for emergency relief, either for reasons of fairness or futility. In TSIKInvest LLC v. Republic of Moldova, for example, the emergency arbitrator ruled out the applicability of the cooling‑off period, reasoning that it would be unfair to condition emergency relief on the pendency of consultations. In Evrobalt LLC v. The Republic of Moldova and Kompozit v. Republic of Moldova, emergency arbitrators reached the same conclusion, albeit on the basis that attempts to resolve the dispute would have been futile.

A further issue that arises particularly under the SCC Rules relates to the State’s consent to the application of emergency relief provisions.  Because most investment treaties predate the 2010 SCC Rules that introduced emergency arbitration, some argued that States cannot be deemed to have consented to this mechanism, a qualitative change they could not have foreseen or intended (see here).

No emergency arbitrator to date treated this issue as an impediment to assuming jurisdiction over an emergency relief application.  However, the temporal application of the SCC Rules has given rise to challenges before domestic courts.  In JKX Oil v. Ukraine, Ukraine opposed enforcement of an emergency arbitrator award on the ground that it had not consented to the emergency procedure because the SCC Rules did not contemplate it when the State ratified the Energy Charter Treaty.  The Ukrainian court rejected that objection, noting simply that the award complied with the SCC Rules in force at the time the emergency procedure was invoked (see here).  The same objection was also raised—and similarly rejected—in State Development Corporation “VEB.RF” v. Ukraine, on the basis that the State had made no reservations regarding the applicability of any particular version of the SCC Rules when ratifying the underlying Russia-Ukraine bilateral investment treaty (see here).

Conclusion

A cursory review of emergency relief decisions over the past twelve years indicates that many of the initial concerns about the use of emergency arbitration in investment treaty proceedings have not materialised.  States that chose to engage in emergency relief proceedings were able to do so meaningfully; emergency arbitrators have granted a variety of non‑monetary relief while respecting States’ regulatory powers in appropriate cases; issues of consent and preconditions to arbitration have not proved insurmountable.

That the sky has not fallen is no reason for complacency, however.  Emergency relief is a sharp tool that can reach deeply into highly sensitive areas of sovereign activity, and the practical challenges States face when required to respond under compressed emergency timetables should not be underestimated.  An elephant is not a mouse: however agile and adroit, it cannot always move lightly through the narrow corridors of emergency relief procedure without risking missteps that carry grave public consequences.

A fuller scholarly assessment of the emergency relief mechanism in investment treaty proceedings that this short contribution invites to undertake should weigh these remaining concerns and early empirical indications against the benefits of this procedural device for the process and those affected by it, and consider whether the “uniquely Stockholm” experience should be exported more widely.  Pending that analysis, caution remains justified: better safe than sorry.

• 1

  TSIKinvest LLC v. Republic of Moldova, SCC Case No. EA 2014/053, Emergency Decision, 29 April 2014; Kompozit LLC v. Republic of Moldova, SCC Case No. 2016/95, Emergency Award on Interim Measures, 14 June 2016; Evrobalt LLC v. Republic of Moldova, SCC Case No. EA 2016/082, Award on Emergency Measures, 30 May 2016; Mohammed Munshi v. Mongolia, SCC Case No. EA 2018/007, Award on Emergency Measures, 5 February 2018; Komaksavia Airport Invest Ltd. v. Republic of Moldova, SCC Case No. EA 2020/130, Emergency Award on Interim Measures, 2 August 2020.

• 2

  JKX Oil & Gas plc, Poltava Gas B.V. and Poltava Petroleum Company v. Ukraine (I), SCC Case No. EA 2015/002, Emergency Award, 14 January 2015; GPF GP S.à.r.l v. Poland, SCC Case No. 2014/168, Emergency Award, 6 January 2015; Puma Energy Holdings SARL v. Republic of Benin, SCC Case No. EA 2017/092, Emergency Award, 8 June 2017; State Development Corporation “VEB.RF” v. Ukraine, SCC Case No. EA 2019/113 and V2019/088, Emergency Arbitrator Decision on Interim Measures, 28 August 2019; Zaza Okuashvili v. Georgia, Award of the Emergency Arbitrator,  SCC Case No. EA 2019/038, 2 April 2019; Zaza Okuashvili v. Georgia, Award of the Emergency Arbitrator,  SCC Case No. EA 2019/038, 19 July 2019; Komaksavia Airport Invest Ltd. v. Republic of Moldova, SCC Case No. EA 2020/130, Decision of the Emergency Arbitrator Denying Claimant’s Request for Provisional Measures, 25 May 2020; Inflection Management and Rybakov Industrial v. Poland, SCC Case No. EA 2024/139, Award of the Emergency Arbitrator Dismissing the Arbitration for Lack of Jurisdiction, 19 September 2024; Karapetyan and others v. Armenia, SCC Case No. EA 2025/121(I), Award on Emergency Decision on Interim Measures, 22 July 2025.