Draft Arbitration Rules of PMAC: Emergency Arbitration

On 4 June 2025, the Patent Mediation and Arbitration Centre (the Centre) of the Unified Patent Court (UPC) launched a (now closed) public consultation to gather feedback on its Draft Arbitration Rules (the Draft Rules). Building on our previous analysis of the Draft Rules, this blog post focuses specifically on the emergency arbitration process: how it works under the Draft Rules, how it compares to other arbitral regimes, and what implications it may carry for parties seeking urgent relief prior to the commencement of an arbitration or before the full arbitral tribunal is appointed.

Art 27(1) of the Draft Rules allows parties to request an emergency arbitrator when they require “urgent interim measures that cannot await the constitution of a Tribunal”. First introduced by the American Arbitration Association’s International Centre for Dispute Resolution (AAA-ICDR) in 1999, the option of seeking urgent relief from an emergency arbitrator has now been taken up in most major institutional rules, including the Draft Rules. It provides the parties with the option to receive urgent interim relief even before the arbitral tribunal is constituted (which may take weeks and sometimes months) instead of going to a competent local court for such relief.

Speedy appointment of the emergency arbitrator

The Centre clearly intends to act speedily. Upon receipt of a request to appoint an emergency arbitrator by a party, the Centre shall appoint a sole emergency arbitrator “promptly” and in any case “within two working days” (Art 27(4)). This short timeframe, which accommodates the expeditious nature of the proceedings, is in line with most other institutional rules.

The Centre appoints the emergency arbitrator without input from the parties, which is the norm across most institutions – again, due to the urgent nature of the proceedings. It would be helpful to know (for example via practice notes) whether the Centre would execute or at least consider any prior (written) agreement between the parties. For instance, the arbitration rules of the London Court of International Arbitration (LCIA) explicitly require that “any written agreement or joint nomination by the parties” is considered (Arts 9.6 and 5.7 of the LCIA Rules). 

Challenging an emergency arbitrator: procedure still unclear

Most institutional rules allow challenges to emergency arbitrators. They prescribe short timeframes within which parties may do so, ranging from three days (like the World Intellectual Property Organization (WIPO), the International Chamber of Commerce (ICC), the Hong Kong International Arbitration Centre (HKIAC)) to one day (like the Stockholm Chamber of Commerce (SCC), the Singapore International Arbitration Centre (SIAC), AAA-ICDR). 

The Draft Rules, in contrast, do not contain any specific provisions on challenges, nor do they state that the challenge provisions applicable to tribunals (contained in Art 15) apply in amended form. It is therefore unclear whether challenging an emergency arbitrator is possible under the Draft Rules. This should be clarified in the final Rules; not least because the Draft Rules do not foresee any party input into the appointment of the sole emergency arbitrator.

Requesting emergency arbitration: allowing rare ex parte relief

The Draft Rules permit requests for interim measures in the context of emergency arbitration to be made ex parte (Arts 26(4) and 27(7)), with the party against whom the measure is directed having the right to be heard “as soon as practicable” after the decision has been made (Art 27(7)). This stands out among major institutional rules. SIAC Rules are, as of 2025, among the very few that explicitly allow an emergency arbitrator to grant preliminary orders ex parte, provided the opposing party can present its case “at the earliest practicable time”. While the Swiss Arbitration Centre’s International Arbitration Rules (ASA) do not expressly allow for ex parte applications to an emergency arbitrator, such applications are arguably admissible.

This provision in the Draft Rules is likely intended to mirror Rules 192, 197 and 212 of the UPC’s Rules of Procedure, which allow the Court to order interim measures without hearing the other party if a notification of that party is likely “to cause irreparable harm to the applicant” or there is “a demonstrable risk of evidence being destroyed or otherwise ceasing to be available”. That said, the Draft Rules do not mirror this wording of the UPC’s Rules of Procedure and instead allow for ex parte measures where the disclosure of the request to the other party “risks frustrating the purpose of the measure”, Art 27(4) – although it remains to be seen whether this will result in a material difference in practice.

Timing of the decision: speed without a set deadline

The emergency arbitrator shall decide on any request “as soon as possible” (Art 27(10)), with no further timeframe being specified. This is unusual. Many institutions set specific (albeit in some cases extendable) timelines, such as five (SCC) or 14-15 days (ICC, SIAC, LCIA, HKIAC). Only WIPO and AAA-ICDR similarly provide for no fixed or desirable time limit by which the decision of an emergency arbitrator should be rendered. In omitting an indicative timeframe, the Draft Rules allow for greater procedural flexibility where needed. In practice, however, emergency arbitrators are likely to look to other institutions’ rules for guidance and may set a procedural timetable accordingly.

Available relief and applicable standards: broad discretion

The Draft Rules provide the emergency arbitrator with broad discretion in conducting the proceedings (Art 27(7)), including whether to hold a hearing and what evidence to admit – such as limiting submissions to documents or allowing witness and expert testimony.

In line with many other institutional rules, the Draft Rules do not specify the type of relief that parties may seek in emergency arbitration. Absent specific provisions to the contrary, it should be assumed that the emergency arbitrator can grant the same interim relief as an arbitral tribunal. Under Art 26 of the Draft Rules, which deals with interim measures in general, an emergency arbitrator therefore has broad discretion as to the measures it may grant as long as it considers those measures “appropriate” (Art 26(1)). 

Similarly, consistent with most other institutional rules, Art 27 of the Draft Rules does not set out the legal standard for the granting of urgent measures by an emergency arbitrator. In practice, the standard under Art 26(3) for interim measures is likely to apply - namely, that the harm “cannot be adequately remedied by damages” and “substantially outweighs” the harm to the opposing party. (This is an unusual test that warrants further clarification, as noted in our earlier blog post on interim measures.) Additionally, Art 27(7) requires that the emergency arbitrator must also consider the “urgency” of the case when making a decision.

No reasoning required: a trade-off between speed and transparency

The Draft Rules do not contain a provision requiring the emergency arbitrator to provide reasons for their decision. This is uncommon, as major rules like those of the AAA-ICDR, ICC and HKIAC do impose such a requirement. The Centre’s approach appears to be a deliberate choice to prioritise speed – an important consideration in patent disputes – and to leave the decision whether to provide written reasons to the emergency arbitrator. However, this may raise procedural due process concerns, as written reasoning enhances accountability and promotes well-founded decisions. One possible solution could be to require the emergency arbitrator to provide reasons in summary form, and/or to provide fuller reasons within a set timeframe after issuing the decision. In any case, the authors would encourage clearer guidance or even an express provision requiring emergency arbitrators to provide written reasons. 

Enforceability of the emergency decisions depends on jurisdiction 

The enforceability of decisions made by an emergency arbitrator is a matter of debate and largely depends on the laws of the jurisdiction in which enforcement is sought. The core issue stems from the fact that only “awards”, i.e. final tribunal’s decisions, are considered enforceable under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Given that the emergency decisions normally offer temporary remedies (until the arbitral tribunal is constituted), they are not considered “final” and therefore are not enforceable under the New York Convention. However, many jurisdictions will nonetheless enforce emergency arbitrator decisions. Some jurisdictions have even  enacted express laws to that effect (for instance in Singapore and Hong Kong), others may enforce it on the basis of relevant provisions of domestic arbitration laws that allows the local courts to enforce an interim measure issued by an arbitral tribunal (see Art 17 H UNCITRAL Model Law).

Outlook 

Fast interim decisions, e.g. to preserve evidence, are particularly important in patent disputes. To compete with litigation, arbitration rules therefore must offer emergency arbitration allowing for such applications even before the arbitral tribunal is constituted. The Draft Rules acknowledge that through detailed provisions designed to promote speed. Notably, they permit ex parte applications and do not even require decisions to be accompanied or followed by written reasons. Such features must be balanced with due process safeguards. In an attempt to do so, the Draft Rules grant parties against whom measures are imposed without notice a prompt right to be heard thereafter. However, transparency could be further strengthened by requiring the Emergency Arbitrator to provide brief reasons with or shortly after any decision.

Other aspects, such as the absence of a deadline within which the Emergency Arbitrator must issue decisions, offer flexibility but depart from common practice; clearer guidance (similar to other rules with open-ended timelines, such as WIPO) would be welcome. The most significant gap, however, is the lack of a mechanism to challenge an emergency arbitrator – a highly unusual feature that risks undermining party autonomy and may lead to due process concerns. The authors recommend that this be addressed formally in the final Rules. 

Note: All references to rules refer to the versions of the rules in force at the time of publication.