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

T. ROHNER & M. LAZOPOULOS, RESPONDENT’S REFUSAL TO PAY ITS SHARE OF THE
ADVANCE ON COSTS
s’épuisera par le remboursement au demandeur de la somme
déboursée par lui pour le compte du défendeur. La décision du
Tribunal arbitral sur ce point n’est ni provisionnelle, ni
conservatoire; elle vise simplement à assurer le respect des
engagements résultant de la clause compromissoire qui ont été
méconnus par le défendeur. […]” 71 (emphasis added).
A similar view was taken by an arbitral tribunal under the UNCITRAL
Rules 72 :
“[…] once a tribunal decides to request each party to deposit
an equal amount of cost advances, there is no doubt that such a
request becomes binding upon the parties. […] the obligation to make
advance payments on costs, either in equal shares or as directed or
requested by the arbitral tribunal, derives from the parties’ duty to
co-operate in good faith in order to allow the arbitration to proceed
[…]. Parties agreeing to arbitration are expected to know that an
arbitral tribunal will incur costs and that it will request advances
from them. Thus, the arbitration agreement may be viewed as the
source of the parties’ duty to advance their shares of the costs of the
arbitration.” (emphasis added).
Also in ICC Case 10169 73 , the sole arbitrator affirmed that the claimant
has a right to require from the respondent that it pays its share of the advance
fixed by the ICC Court:
“3.2.15 In view of these considerations I conclude that, in the
present case, the Claimant has a right to require from the Respondent
that it pays its share in the advance fixed by the ICC Court.”
71
72
73
Free translation into English: “[…] The obligation of each party to pay its share of the advance
represents a contractual obligation resulting from the arbitral agreement. It is independent of the
outcome which the arbitrators reserve with respect to the parties’ claims forming the subject of the
dispute submitted to the arbitration. It is also independent of the final decision regarding the
allocation of the arbitration costs, which have to be determined by the Tribunal in the course of the
final sentence by applying Article 31 (3) ICC Rules.
[…] It is normal that the obligation of each party to pay its share of the advance on costs provides the
party who paid more than its share with a claim for regress.
[…] Contrary to the defendant’s allegation, the regress of the claimant who had to pay the entire
advance does not in any way constitute a conservatory measure. It is aimed at the execution of an
independent contractual obligation which will diminish with reimbursement to the amount paid by it
on behalf of the defendant. In this regard, the arbitration tribunal’s decision is neither provisional
nor conservatory. It only ensures the compliance of the commitments arising from the arbitration
clause, which have been disregarded by the defendant […].”
Partial award under the UNCITRAL Rules dated 2008, publ. in: Yearbook of Commercial Arbitration
(2009), at 24.
Order No. 1 dated 10 September 1999 in ICC Case 10169 (unreported).
29 ASA BULLETIN 3/2011 (SEPTEMBER) 567