Costs of arbitration / Article 20(1) and (2) of the ICC Rules / Apportionment of costs / Mandatary nature of Article 9(2) of the ICC Rules

'Conclusion:

Each party shall bear its own legal costs: Defendant shall reimburse the share of the arbitration deposit paid in advance by claimant.

Grounds:

According to Article 20(1) and (2) of the ICC Rules, the costs of the arbitration are the following:

- arbitrator's costs

- arbitrator's fee

- ICC administrative costs

- legal costs of the parties.

When allocating such costs, account should be taken of the fact that while Claimant mostly failed, his claims were not at all reckless, far from it. If he had been able to produce evidence of a sufficient causal link between his intervention and the two last removals, he would have supported his main claims. Moreover, Defendant did not succeed in all his claims. Lastly, the existence of a dispute was partly due to the fact that Defendant had involved a second middleman without taking particular steps vis-à-vis the first one, thus running a certain risk of confusion. Therefore it is only fair that each party should bear its legal costs, as well as one half of all other arbitration costs.

These other costs, i.e. the fees and costs of the arbitrator and the ICC, amounting to US$ 18,000, were covered through the advance on arbitration costs. But Claimant was forced to pay the whole arbitration deposit, since Defendant did not pay his share, in spite of having been duly summoned to do so by the Secretariat of the ICC Court. The obligation under Article 9(2) of the ICC Rules is actually mandatory and not a mere commitment parties would be free to perform or not according to their wish to proceed with the arbitration. Defendant has therefore failed to comply with the agreement to arbitrate and must reimburse the amount of US$ 9,000 to Claimant.

In light of these considerations, the Arbitrator:

- disallows all the Claimant's claims, with the exception of those concerning the arbitration costs, to the extent stated below;

. . .

- rejects Defendant's claim for reimbursement of US$ 10,000;

- states that each party shall bear its legal costs;

- states that each party shall bear one half of the arbitration costs fixed by the ICC International Court of Arbitration at US$ 18,000; and

- consequently orders Defendant to reimburse US$ 9,000 to Claimant.'