NEWSLETTER-2020-metin

225 ARBITRATION LAW available in the application and decide whether the EA provisions ap- ply with reference to Articles 29(5) and 29(6) of the ICC Rules. The President rarely exercises his power to reject applications, and mostly allows applications to proceed with the EA’s final determination on threshold issues. Jurisdiction of the EA The EA shall be entitled to determine whether it has jurisdiction to order emergency measures. The “jurisdictional test” should also include whether an arbitration agreement exists. Multi-tiered dispute resolution clauses are of particular impor- tance since many jurisdictional challenges have been raised within this context. There have been 33 cases in which the EA’s jurisdiction was contested 10 . Admissibility of the Application The “admissibility test” would refer to the need of “urgent interim or conservatory measure that cannot await the constitution of an arbi- tral tribunal.” This is also the requirement foreseen in Article 29(1) of the ICC Rules. The EA provisions do not explicitly mention the law applicable to threshold issues 11 . In most cases, the EAs do not consider themselves bound by the lex contractus but rather conduct their determination with the guidance of the relevant national law and/or the lex arbitri . Section C of the Report deals with procedural matters. This sec- tion discusses the EA proceedings from the transmission of the file to the EA until the rendering of the order. Pursuant to Article 5(2) of Appendix V to the ICC Rules, the EA may conduct the proceedings in the manner in which the EA considers to be appropriate. This provision clearly gives the EAs wide discre- tion. The most important restriction in this context relates to the time limit foreseen in the ICC Rules. Unless an extension of time has been 10 Please see para 79 of the Report. 11 Please see para 89 et seq. of the Report.