Security for costs is scarcely the most popular partner on the arbitration dance floor.
Derains and Schwartz note in their treatise on the ICC Rules, for example, that ICC arbitrators have ordered parties to provide security for costs, although such cases are “exceptional.” They observe that the ICC Rules do not expressly provide for security for costs, but add that “parties may apply to the Arbitral Tribunal for the same under Article 23” — a phrasing that stops short of placing the writers in the camp of those who consider that a security for costs order is indeed an interim measure covered by ICC Article 23. They further quote Swiss author Marc Veit, writing in the ASA Bulletin in 2005, that “[t]he common denominator in international arbitration practice for ordering security for costs is the requirement of a fundamental change of situation since the agreement to arbitrate was entered into which results in a clear and present danger that a future costs award would not be enforceable.” But this describes a necessary but not sufficient condition.
The LCIA Rules (Article 25.2) and Hong Kong International Arbitration Centre Rules (Article 11.1) have little company among the major rules regimes, in providing expressly that arbitrators have the power to order security for costs.
But whether the power to grant security is stated expressly or is found by implication in general interim measures rules, the question always is under what conditions such orders shall issue.
Research into the issue readily turns up the reasons why such measures might not be ordered — that an impecunious but bona fide claimant (or counterclaimant) might be unfairly deprived of access to relief on the merits; that a financial decline of the party that might be ordered to bear costs is a normal business risk taken in agreeing to arbitrate disputes. Wendy Miles and Duncan Speller of Wilmer Hale (London), writing in the European Arbitration Review in 2007, note that security for costs “serves a valuable role in complementing cost-shifting rules and acts as a deterrent against spurious or frivolous claims.” (Article is republished on Wilmer Hale website under publications).
Tests that focus on the merits of the claim will be inherently biased against the granting of security, as arbitrators will be reluctant to pre-judge the merits or to accelerate the presentation of proofs in the fashion of US court preliminary injunction hearing.
Tests that focus only on a “fundamental change of situation” risk turning security for costs into a form of claim-owners insurance. It is rather the reasons for the fundamental change (for the worse) that should be examined. Jean Kalicki (Arnold + Porter, Washington) is on the right path, writing that “security is more likely to be awarded where the claimant’s financial incapability appears the result of deliberate actions to shield itself from potential liability, while maintaining the upside potential of a favorable merits award. A twist on this is where the claimant’s arbitration fees and expenses are being covered by a related entity or individual who stands to gain if the claimant wins, but would not be liable to meet any award of costs that might be made against the claimant if it lost” (www.arbitralwomen.org/files/publication/0207001415156.pdf)
Business failures due to competitive conditions or economic cycles are not risks that should be addressed by orders for security; these are risks a contracting party takes in the ordinary course of doing business. Contrived business failure or financial weakness, arranged specifically to frustrate enforcement of an eventual award of costs are really at the core of what security for costs orders should address.
Such conditions are prone to exist in the domain of family-owned or closely-held enterprises, or small-to-moderate sized enterprises whose financial structure may be tied to a handful of investors who can exercise de facto control over the financial affairs of the business. In such environments, regular financial reporting and record-keeping may be non-existent, except as necessary for the filing of tax returns, and owner-employees may have essentially unilateral ability to transfer funds among a group of companies or into individual or trust accounts of family members or investors.
How shall a Tribunal identify such a situation? Relatedly, how shall the applicant for security demonstrate the existence of such circumstances to the satisfaction of the Tribunal? Manipulation, or an environment conducive to it, are probably the critical factors.
One scenario that is probably frequently encountered is the obligor of a defaulted obligation that threatens to “self-destruct” (e.g. file for bankruptcy, or liquidate) as a means to discourage a creditor who has threatened arbitration. The same debtor also threatens a counterclaim in an amount vastly disproportionate to the contract debt — one that blames the creditor for its alleged woes — to discourage the claimant from pursuing the matter.
When the counterclaim is filed, should the claimant, now faced with far higher legal expenses than were anticipated for a straightforward non-payment claim, be entitled to security for costs? And how does the Tribunal decide this without pre-judging the counterclaim to be purely tactical and lacking substantive merit?
A non-exhaustive list of considerations might be:
1. Can the debtor reliably corroborate a situation of financial distress due to business conditions?
2. Can the debtor reliably corroborate having formulated the counterclaim other than as a retaliatory measure?
3. Is the debtor’s business prone to manipulation by its owners, particularly in the ability to transfer funds to related entities or individuals?
4. Is the debtor’s claim of distress contradicted by its apparent ability to bear substantial legal expenses?
5. Does the debtor’s conduct in the arbitration indicate a strategy to promote delay and inefficiency, and to maximize the legal expenses of the claimant?
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Despite the differences among rules and statutes, which treat security for costs less than explicitly under most regimes, the question of the power of arbitral tribunals to grant security for costs is less controversial than the question of when the power should be exercised. Experienced arbitrators should recognize situations where the claimant or counterclaimant is using tactics to run up costs for the other side while organizing its own affairs to make an anticipated eventual final award against that entity unenforceable. This is the realm in which security for costs can be an essential tool to prevent subterfuge and promote justice in the arbitral process.
If may say so, the assumption that arbitrators have some inherent power to order security for costs is based on the false premise that arbitration is a proceeding at law and that an arbitrator is a kind of judge. I suggest that, if an analogy is to be found at all in the courtroom, it is with the jury, as trier of fact. The position at English Law was clear and simple from re Unione Stearinerie Lanza and Weiner (1917) until the Arbitration Act 1996, which gave the power to arbitrators solely to take an embarrassing ‘hot potato’ from the hands of the Courts. .(See Coppee–Lavalin SA/NA & Voest–Alpine AG v Ken–Ren Chemicals & Fertilisers Ltd (in liq) [1994] 2 All ER 449.)
I suggest that the words of Viscount Reading in Lanza and Weiner apply to the fundamental position regardless of the legal system so that, unless the power is either conferred by Statute or by agreement between the parties, purported orders for security are null and void. A danger could be that a tribunal that refused to proceed without security for the respondent’s costs (as opposed to it’s own fees and expenses) could be in breach of it’s duty.
Per Viscount Reading:
“The arbitrator doubted whether he had the power to make the order; and we are told in fact he thought he had not the power. In my judgment he was right and there is no such power in an arbitrator. He could have been given the power by express agreement between the parties, but it is not suggested that there was any agreement to that effect.
. . . . The dispute obviously can be determined whether security for costs be given or not. The object of the application for security for costs is not to enable the proceedings to continue in order that it may be determined by the reference whether there is a valid claim by the party in the position of a plaintiff, but to put an obstacle in the way of his proceeding until he has done an act which will provide security to the party in the position of the defendant that, should he obtain an order for costs, the amount will be paid. That has nothing whatever to do with the arbitrator ascertaining the true position between the parties in order to determine the case.”
There is an interesting article entitled Can You Seek Security for Costs in International Arbitration in Australia? by Simon Greenberg, Associate in the International Arbitration Department of Dechert LLP, Paris and Christopher Kee Lecturer, Deakin University, Melbourne and Consultant, Keelins Lawyers, Melbourne.(Australian Construction Law Newsletter #109 July/August 2006, accessed at
http://www.austlii.edu.au/au/journals/AUConstrLawNlr/2006/57.pdfhttp://www.austlii.edu.au/au/journals/AUConstrLawNlr/2006/57.pdf on Monday 12 July 2010); it is relevant beyond both Construction and Australia.