ASAB 29-3 Thomas Rohner Michael Lazopoulos - Pestalozzi ...

T. ROHNER & M. LAZOPOULOS, RESPONDENT’S REFUSAL TO PAY ITS SHARE OF THE
ADVANCE ON COSTS
2002 ne peut raisonnablement pas être interprétée comme une
décision préjugeant de l’issue de la procédure arbitrale et de la
solution adoptée dans la sentence finale […]” 53 .
c. The Respondent’s Breach of its Obligation
The claimant has further to demonstrate that the respondent breached
its contractual obligation under the arbitration agreement by not paying the
requested advance on costs.
d. The Causal Link between the Respondent’s Breach of its
Obligation and the Claimant’s Damage
Finally, the claimant has to demonstrate causation between the
respondent’s breach of its contractual obligation under the arbitration
agreement (i.e. the non-payment of the requested advance on costs) and any
damage incurred thereby. In other words, the claimant has to show that the
claimed damage would not have occurred, if the respondent had paid its share
of the advance on costs.
4. Possible Reasons to Excuse the Respondent from Paying the
Requested Share of the Advance on Costs
The respondent’s contractual obligation arising out of the arbitration
agreement to pay the requested share of the advance on costs should not
apply without exception. There might be reasonable circumstances which
excuse the respondent’s non-payment of the advance on costs. According to
the general rule of evidence, the respondent who alleges the existence of an
excuse usually bears the burden of proof for all the facts in relation thereto
(see p. 559 above). 54
For instance, one could argue that a valid reason to excuse the
respondent from paying its share of the advance on costs is an attempt of the
claimant to intentionally deteriorate its financial situation after the conclusion
of the arbitration agreement. Consequently, there would be no or only little
53
54
Free translation into English: “[…] This condemnation to pay an advance on costs of 24,000 US$ only
effects the part of the arbitration costs imposed on the appellant [defaulting party], which has not
been paid by the appellant, but have been advanced by the appellee in order to proceed with the
arbitration proceedings. Insofar as the arbitral tribunal has ordered in the course of the procedure
the reimbursement of this advance on costs paid by the opponent, and not the payment of the entire
arbitration fees, i.e. 48,000 US$, the partial award dated 2 May 2002 cannot reasonably be
interpreted as a decision prejudging the merits of the arbitral proceedings and the outcome decided
in the final award that was rendered on 23 December 2002.”
See also interim award dated 12 November 2010 in ICC Case 17050, para. 31 (unreported), supra
note 37, where the arbitral tribunal held that “[…] it is for the party that refuses to pay its share of the
advance on costs to invoke such circumstances that would justify the non-payment.”
29 ASA BULLETIN 3/2011 (SEPTEMBER) 561