'E. Should [Respondent] be ordered to provide security for the costs to be incurred by the Claimants in this arbitration (last claim)?

24. [Respondent] submits that the request to post security for costs is a new claim, falling outside the scope of the Terms of Reference and thus violating Article 19 of the ICC Rules . . . However, such request is not related to the substance of the case, but is for an interim measure under Article 23 of the ICC Rules; such request for interim measures need not to be included in the Terms of Reference.

25. Recent legal writers tend to consider that arbitral tribunals do have the power to order claimant to provide security for costs for respondent's legal costs, even without any specific clause to that effect in the arbitration clause, in the arbitration rules and in the applicable arbitration law (Fouchard/ Gaillard/ Goldman, Traité de l'arbitrage commercial international, Paris 1996, p. 702). At any rate, Article 23 (1) of the ICC Rules, confirming expressly the power of the arbitral tribunal to "order any interim or conservatory measures it deems appropriate", also includes the power to make an order for a security for costs (Craig/ Park/ Paulsson, International Chamber of Commerce Arbitration, third edition, Paris 2000, § 26.05 iv), pages 467-469; Derains/Schwartz, A Guide to the New ICC Rules of Arbitration, The Hague 1998, ad Article 23 (1), page 274).

However, these writers note that arbitral tribunals are generally reluctant to order security for costs.

26. The Claimants submit that security for costs may be requested by a claimant as well as by a respondent. The Claimants submit that they have a strong interest in obtaining such security, in view of [Respondent's] financial condition and in view of the substantial risk that [Respondent] would be unwilling or unable to pay any costs decided in an award issued at the end of the proceedings, and that [Respondent] should suffer no material harm from the granting of the requested relief.

27. The mechanism of security for costs was historically meant to protect a respondent wishing not to be involved in litigation. The Claimants have not been able to cite authority (except an unspecified unreported decision) supporting their submission that in arbitration the same principle could be applied to protect a claimant. The Claimants invoke Article 15 (2) of the ICC Rules, which is irrelevant here.

28. In this case, the relief requested by the Claimants could possibly be considered if it would appear likely that it should be decided at the end of the proceedings that [Respondent] should bear the legal costs incurred by the Claimants. This is not the case, at least at this stage of the arbitration proceedings, when the Claimants have not yet presented fully their main claim.

It follows that, at this stage of the arbitration proceedings, the request of the Claimants for an interim measure providing security for their costs is rejected.'