The claimant, an Italian company, and the two respondents, a UK company and an Italian company, entered into an agreement defining the terms of their involvement in a construction project in Turkey, in which each of them were given an equal interest, either directly or through their shareholdings in other companies involved in the project. The Turkish owner cancelled the project on public policy grounds, which led to a prior arbitration between a company jointly owned by the parties (joint venture) and the Turkish owner. That arbitration ended in a settlement, to which the first respondent in the present arbitration objected, alleging that the second respondent had fraudulently executed a pledge of shares to exclude it from the settlement discussions. It took its objection to a state court, which found that the pledge agreement should not have been executed and that the first respondent remained the beneficial owner of the shares in question. As the arbitrator in the present arbitration declined jurisdiction to decide on issues relating to the pledge agreement, the first respondent brought new proceedings in the state court against the claimant, the second respondent and the joint venture company, in which it sought payment of a third of the damages claimed by the joint venture from the Turkish owner or, alternatively, a third of the amount of the settlement reached; a declaration that the joint venture had been conducted in a manner that was contrary to its interests; and the production of accounting information. The claimant and the second respondent requested the arbitrator to order conservatory measures requiring the first respondent to provide them each with a bank guarantee and to discontinue proceedings in the state court.

La demanderesse, une société italienne, et les deux défenderesses, une société britannique et une société italienne, conclurent un accord définissant les conditions de leur participation à un projet de construction en Turquie. Elles avaient chacune un intérêt égal dans le projet, soit directement soit par la détention du capital d'entreprises travaillant sur le projet. Le maître d'ouvrage turc mit fin au projet pour cause d'ordre public, provoquant ainsi un arbitrage précédent entre lui-même et une société détenue conjointement par les parties (joint venture). Cet arbitrage se termina par une transaction, à laquelle la première défenderesse dans le présent arbitrage s'opposa au motif que la seconde défenderesse avait frauduleusement fait exécuter une cession d'actions données en gage par la première défenderesse afin d'exclure celle-ci de la négociation du règlement transactionnel. Elle porta son grief devant une juridiction étatique qui décida que l'acte de nantissement des actions n'aurait pas dû être exécuté et qu'elles restaient la propriété effective de la première défenderesse. L'arbitre s'étant déclaré incompétent pour statuer sur des questions relatives à l'acte de nantissement, la première défenderesse introduisit une nouvelle action devant la juridiction étatique contre la demanderesse, la seconde défenderesse et l'entreprise commune, pour obtenir le paiement d'un tiers du montant des dommages-intérêts réclamés par le maître d'ouvrage envers le maître d'ouvrage turc ou, subsidiairement, un tiers du montant de la transaction, une déclaration affirmant que la gestion de l'entreprise commune était contraire à ses intérêts, ainsi que la communication de renseignements comptables. La demanderesse et la seconde défenderesse sollicita de l'arbitre des mesures conservatoires ordonnant à la première défenderesse de leur fournir chacune une garantie bancaire et à cesser la procédure devant la juridiction étatique.

El demandante, una sociedad italiana, y los dos demandados, una sociedad británica y una sociedad italiana, concluyeron un acuerdo que define los términos de su compromiso en un proyecto de construcción en Turquía, en el que se concedió igualdad de participación a cada uno de ellos, ya sea directamente o a través de una participación accionarial en otras empresas implicadas en el proyecto. El propietario turco anuló el proyecto por razones de orden público, lo que condujo a un arbitraje previo entre una empresa de propiedad conjunta de las partes (joint venture) y el propietario turco. Este arbitraje dio lugar a una resolución, a la que el primer demandado del presente arbitraje formuló una objeción alegando que el segundo demandado había ejecutado fraudulentamente un derecho de garantía sobre las acciones para excluirlo de las conversaciones entabladas con vistas a la solución del litigio. El primer demandado presentó su objeción a un tribunal estatal que estimó que el acuerdo de garantía no debía haberse ejecutado y que el primer demandado seguía siendo el beneficiario efectivo de las acciones en cuestión. Debido a que el árbitro del presente arbitraje declinó su competencia para resolver asuntos relativos al acuerdo de garantía, el primer demandado inició un nuevo procedimiento en un tribunal estatal contra el demandante, el segundo demandado y la empresa conjunta, en el que solicitó el pago de un tercio de la indemnización reclamada por la empresa conjunta al propietario turco o, alternativamente, un tercio de la suma acordada en la resolución; una declaración de que la empresa conjunta se había dirigido de manera contraria a sus intereses y, por último, una presentación de la información contable. El demandante y el segundo demandado solicitaron al árbitro que ordenara medidas cautelares exigiendo que el primer demandado proporcionara a cada uno una garantía bancaria y que suspendiera el procedimiento en el tribunal estatal.

'I. General

1. The requests submitted on [consecutive days in] 2001 by [Respondent 2] and [Claimant] are Applications for conservatory measures. The Applications share in common that both [Respondent 2] and [Claimant] seek an order interrupting the proceedings initiated against both of them in [the state courts]. The Applications are particular in that each applicant seeks a bank guarantee to cover part of its claims and in addition its costs incurred in the course of these arbitration proceedings.

2. It is not contested in ICC arbitration law that arbitrators are competent to order any interim or conservatory measures justified by the case.

This is implicit in Art. 8(5) 1st Para. of the 1.1.1988 ICC Rules of Arbitration applicable in the present case and has been expressly stated in Art. 23(1) of the Rules of 1.1.1998. Such power is also recognized in Swiss law, which has already been taken into consideration in these proceedings given the place of arbitration in Geneva . . . Art. 183 of the Swiss Private International Law Act indeed provides that, in international arbitration, "unless the parties have agreed otherwise, the arbitral tribunal may, at the request of a party, order provisional or protective measures".

II. The requests for interruption of the proceedings in [the state courts]

3. Both [Respondent 2] and [Claimant] request the sole arbitrator to order [Respondent 1] to "suspend and discontinue any judicial proceedings in [the state courts] against the parties in this arbitration having the same object of the dispute outlined in the Terms of Reference".

[Respondent 1] requests the dismissal of such request.

4. The positions of the Parties are briefly as follows:

a) [Respondent 2] mainly contends that, owing to [Respondent 1]'s precarious financial situation ([Respondent 1] is claimed to be a shadow company without any assets) and its consequent probable inability to comply with any monetary award whatsoever, [Respondent 1] is attempting to divert the Parties' dispute from the jurisdiction of the sole arbitrator . . . To achieve this goal, [Respondent 1] has on the one hand submitted in the [state court] the same claims as those the subject of this arbitration as defined in the Terms of Reference and on the other hand has refused to contribute to payment of the increased amount of the advance on costs, with the aim of provoking withdrawal of all of the arbitration claims . . .

According to [Respondent 2], an order directing [Respondent 1] to suspend and discontinue the proceedings initiated in [the state courts] would be justified for the following reasons:

- No objection to the jurisdiction of the sole arbitrator has been raised by [Respondent 1] and any such objection would no longer be admissible.

- By signing the Terms of Reference, [Respondent 1] has entrusted the sole arbitrator with the power to decide o[n] all the disputes deriving from the Shareholders' Agreement.

- The suit filed by [Respondent 1] in [the state courts] during the course of these arbitration proceedings is a patent violation of the arbitration agreement between the Parties; the sole arbitrator is therefore entitled to order [Respondent 1] to comply with its contractual obligations.

b) [Claimant] does not specify the grounds for its request to interrupt the proceedings initiated by [Respondent 1] in [the state courts], apart from simply referring to the arguments raised by [Respondent 2] in its submission . . .

c) [Respondent 1] mainly contends that the pending [state court] action is a follow-up to the "Pledge dispute" determined by the sole arbitrator to be outside the scope of these arbitration proceedings. Although the amount of monetary damages claimed in [the state court] is the same as that stated in these arbitration proceedings, it must be pointed out that the causes of action are different. In [the state court], the cause of action wholly relates to the conduct of the directors of [the joint venture] in the transfer of the pledged [joint venture] shares and "their fraudulent representations to engage the services of the legal administrator to participate in the conspiracy to transfer the pledged shares". The conduct of [the joint venture's] directors and the corporate structure of [the joint venture] can be judged only by the jurisdiction in and according to the law of the place of incorporation, i.e. [where the state court is located]. [Respondent 1] also argues that, in its action brought in the [state court], [Respondent 1] has applied for an award of exemplary damages, which is not the case in these arbitration proceedings . . .

Replying to [Respondent 2]'s argument concerning [Respondent 1]'s unwillingness to contribute to payment of the increased amount of the advance on costs, [Respondent 1] states that until [Respondent 2]'s recent payments [Respondent 1] had paid more than its share of the advance on costs because of [Respondent 2]'s and [Claimant]'s failure to make their proportionate payments early in the proceedings . . .

5. In order to rule on the request submitted by [Respondent 2] and [Claimant], the sole arbitrator must first examine the relation between these arbitration proceedings and the action filed in [the state court]:

a) The parties to the proceedings. They are mainly the same, since [Respondent 2], [Claimant] and [Respondent 1] act in both proceedings. The proceedings in [the state court] are slightly different, however, in that the joint venture . . . and the late [Claimant's representative] were also joined as defendants. No request having been made to rule against the joint venture company itself in the arbitration proceedings, the sole arbitrator's final award will be limited to the claims submitted by [Respondent 1] against [Respondent 2] and [Claimant].

b) The claims submitted in the proceedings. They are mainly the same:

- in both cases, [Respondent 1] requests payment of one-third of the claim against [the bank] . . . and of the amount settled with [the bank] . . .

- as in these arbitral proceedings, [Respondent 1] has applied to the [state court] for production of [the joint venture's] financial statements. It must be mentioned here that, on . . . 2000, at the sole arbitrator's request, [Respondent 2] produced [the joint venture's] balance sheets from 1994 to date. Thus, [Respondent 1]'s request for disclosure in [the state court] does not appear to remain of interest, except perhaps as concerns [the joint venture's] financial statements between 1991 and 1994.

- [Respondent 1] has, however, submitted in the proceedings in [the state court] two claims which have not been not raised in these arbitral proceedings: a request for an order that the affairs of [the joint venture] are being and have been conducted in a manner unfairly prejudicial to the interests of [Respondent 1] and a request for payment of an unspecified amount of exemplary damages.

c) The subject matter of the proceedings. Undeniably, the dispute in both proceedings is over the loss alleged to have been suffered by [Respondent 1] as a consequence of the . . . 1994 settlement agreement between [the joint venture] and [the bank]. As mentioned above, the claims submitted by [Respondent 1] in this respect are in the same amount in both proceedings.

6. During the course of these arbitration proceedings, [Respondent 1] has never challenged the sole arbitrator's jurisdiction with respect to the claims related to the damage allegedly suffered as a consequence of the settlement with [the bank]. Quite to the contrary, [Respondent 1] submitted these claims to the sole arbitrator in September 1995 when asking for the resumption of the arbitration proceedings which had been stayed during the negotiations with [the bank]. The same claims were also submitted against [Respondent 2] in . . . 1996 when [Respondent 1] initiated arbitration No. 9064 as a consequence of the ICC Court's first decision not to admit cross-claims between the [Respondents]. Furthermore, the Terms of Reference-in particular the description of [Respondent 1]'s position by [Respondent 1] itself-signed by [Respondent 1] in . . . 1998 do not mention any objection by [Respondent 1] to the sole arbitrator's jurisdiction over the issue of damages linked to the . . . settlement [with the bank] and its background. Thus, the sole arbitrator's competence to decide these questions cannot now be questioned by [Respondent 1].

7. According to [Respondent 1], the following objections can be made to [Respondent 2]'s and [Claimant]'s request:

a) The cause of action pending in the [state court] differs from the claims in the same amount submitted in this arbitration. More precisely, the action in [the state court] is based on the conduct of the directors appointed by [Respondent 2] and [Claimant] to the Board of [the joint venture]. They are alleged to have behaved in a manner detrimental and injurious to [Respondent 1], in breach of duties and obligations resulting from [local] law.

The sole arbitrator does not find this argument to be persuasive.

Firstly, a parallel reading of [Respondent 1]'s submissions in this arbitration and [Respondent 1]'s action in [the state courts] shows that both proceedings are essentially grounded on the same facts. Alleged on the one hand is the wrongful removal of [Respondent 1]'s representative from [the joint venture's] Board and on the other hand the misappropriation of [Respondent 1]'s shareholding in [the joint venture].

Secondly, the shareholding structure of [the joint venture], its corporate organization and the relations between the shareholders are questions directly linked to the Shareholders' Agreement that deals with them (see in particular Section 6: "Corporate Provisions"). Disputes arising in connection with such questions must therefore be settled by the sole arbitrator as agreed by the Parties and stated in the arbitration clause contained at Section 8.7 of the Shareholders' Agreement. The fact that the [local] companies law might be taken into consideration in some respect when resolving some aspects of these questions does not change the situation.

b) In the action initiated in [the state court], [Respondent 1] claims exemplary damages, which is not the case in this arbitration. Thus, the claims submitted in the two proceedings are not fully identical.

The sole arbitrator deems that this difference between the arbitration proceedings and the [state court] proceedings does not in itself justify the filing and continuation of the latter. The Parties agreed that their disputes in connection with the Shareholders' Agreement would be submitted to arbitration and would be settled according to Italian law . . . They cannot now decide to commence an action in a state court to be governed by another law simply because it is not possible to claim exemplary damages under Italian law, chosen by the Parties when signing the Shareholders' Agreement.

c) The [state court] action is the next step in the "Pledge dispute" determined in the Interim Award of . . . 2000 to be outside the scope of these arbitration proceedings.

The sole arbitrator finds this argument to be an erroneous interpretation of the Interim Award of . . . 2000. In deciding that he had no jurisdiction to settle the issues related to the Pledge Agreement, the sole arbitrator meant exclusively that he was not competent to decide whether the formal conditions for calling the pledge had been satisfied and whether [Respondent 1] had complied with the obligations secured by the pledge. The sole arbitrator neither stated nor implied that he was without power, firstly, to examine the context of the transfer of the pledged shares and, secondly, to rule on the conduct of [Respondent 2] and [Claimant] in this regard. Should the sole arbitrator's power have been so limited, the arbitration clause would then have been totally ineffective. As already mentioned, the shareholding structure, the corporate organisation and the obligations and duties of the administrators are indeed subject matters of the Shareholders' Agreement.

8. For the above-mentioned reasons, the sole arbitrator finds that the action initiated by [Respondent 1] in the [state court] for compensation of the damages suffered as a consequence of the . . . settlement [with the bank] and its background violates the arbitration clause which is part of a binding agreement between the Parties and give to the sole arbitrator the sole jurisdiction to decide these questions.

9. It remains to be determined whether an arbitrator has the power to grant as conservatory relief an order to refrain from initiating or pursuing an action in a state court ("anti-suit injunction"). This question has already been examined in practice and answered in the affirmative (see e.g. Final Award of April 1997 in ICC case No. 8887 where the Defendant had previously been ordered to refrain from pursuing action in the courts of Istanbul; M. Wirth, Interim or preventive measures in support of international arbitration in Switzerland, in Bulletin ASA [Association Suisse de l'Arbitrage] 2000 No. 1 p. 37: in a recent unpublished case, a Swiss arbitral tribunal granted an interim order prohibiting a party from bringing an action before a foreign state court). In its submission, [Respondent 2] has cited some precedents where judicial proceedings competing with arbitration proceedings have been ruled inadmissible (see Final Award of 1989 in ICC case No. 5650) and where it has been stated that the parties should refrain from any action likely to widen or aggravate their dispute, complicate the task of the arbitral tribunal or make more difficult the execution of the final award (see Partial Award of 23 December 1982 in ICC case No. 3896). [Respondent 1], for its part, has not discussed this point.

A party is of course free to file suit in a state court whenever it deems this to be appropriate. It is for that court to decide whether or not it has jurisdiction to entertain the suit. However, an agreement to submit to arbitration signifies that the parties have waived their right to apply to state courts for resolution of disputes covered by the arbitration clause. If a party despite this commences a judicial action when an arbitration is pending, such a filing not only violates the rule according to which a dispute between the same parties over the same subject can be decided by one judge only (lis alibi pendens exception) but also breaches the binding arbitration clause (cf. case cited by M. Wirth, op. cit., p. 37). In such a case, Art. II § 3 of the New York Convention, ratified by [the state where the court is situated], places on the state court the obligation to refer the matter to the arbitral tribunal.

10. It is not contested that an arbitrator has the power to order parties to comply with their contractual commitments. The agreement to arbitrate being such a commitment, its violation must be dealt with by an arbitrator by issuing an order to comply when it is patent that a suit filed in a state court is outside the jurisdiction of that court and is therefore abusive. This power vested in an arbitrator also operates as a guarantee of the efficiency and credibility of international arbitration.

The sole arbitrator deems the judicial proceedings commenced by [Respondent 1] in [the state court] to be abusive. [Respondent 1] has never challenged the sole arbitrator's jurisdiction to find the facts and rule on the claims linked to the settlement agreement with [the bank]. It appears, moreover, that [Respondent 1] has not found it opportune to reveal in its suit in the [state court] that similar proceedings are pending before an arbitral tribunal . . . As stated above, the damages at stake are the same in both proceedings. This means that two contradictory judgements might be rendered. Furthermore, it seems that the [state court] suit deprives [Respondent 2] and [Claimant] of some of their due process rights, in particular their right to put forward their own claims against [Respondent 1] (in the form of counterclaims). Because of [Respondent 1]'s action in [the state court], [Respondent 2] and [Claimant] are forced to participate in two proceedings involving the same subject matter, to incur legal expenses twice and to accept disadvantages that they precisely sought to avoid when agreeing to the arbitration clause. [Respondent 1], to the contrary, if ordered to refrain from taking further action in the [state] courts, would not be deprived of its rights, because the facts pleaded by [Respondent 1] in the [state court] suit are the same as those alleged by [Respondent 1] in support of its claim in this arbitration. If, as contended by [Respondent 1], the [state court] suit is really based on other grounds, the facts in support thereof can presumably be pleaded by [Respondent 1] in this arbitration given that they will have arisen in the general course of relations between the shareholders and thus fall within the scope of the Shareholders' Agreement and its arbitration clause.

11. In view of the foregoing, the sole arbitrator orders [Respondent 1] to refrain from pursuing the action it initiated against [Respondent 2] and [Claimant] in the [state court].

12. [Respondent 2] and [Claimant] have not requested the sole arbitrator to impose penalties should [Respondent 1] fail to obey the order not to pursue its action in [the state court]. This point need not, therefore, be examined here. It will thus fall to [Respondent 2] and [Claimant] to take whatever steps may be required in order to obtain enforcement of this order. Should such steps not succeed, relief for damages resulting from breach of the agreement to arbitrate might possibly be sought in this arbitration.

III. The requests to provide bank guarantees

A. The request submitted by [Respondent 2]

13. [Respondent 2] requests [Respondent 1] to provide it with a bank guarantee in the amount of . . . The purpose of this guarantee is to cover reimbursement of a debt of . . . claimed to have been acknowledged by [Respondent 1] as well as the expenses incurred by [Respondent 2] in the course of this arbitration. During the meeting held on . . . 2001 in Paris, [Respondent 2] submitted an alternative request. Instead of receiving a bank guarantee, [Respondent 2] would accept an immediate cash payment by [Respondent 1] of . . ., and [Respondent 2] would in turn provide [Respondent 1] with a guarantee of restitution should the Final Award rule that [Respondent 1] did not owe the claimed . . . debt.

[Respondent 1] requests the sole arbitrator to dismiss [Respondent 2]'s applications.

14. The positions of the Parties are briefly as follows:

a) [Respondent 2] mainly contends that [Respondent 1] is a shadow company without assets or business activities. From a financial point of view, [Respondent 1] would thus be totally unable to fulfil its contingent obligations resulting from the final award to be rendered in this arbitration. [Respondent 1]'s precarious financial situation appears from the following facts:

- During the meeting held on . . . 1999, [Respondent 1]'s representative . . . stated that [Respondent 1] was a "nominee company".

- The only shareholder of [Respondent 1] whose name has been disclosed in this arbitration is a company that has been dissolved for insolvency.

- Without any valid reason, [Respondent 1] did not comply with the Procedural Order of . . . July 2000 according to which [Respondent 1] was to disclose its financial statements.

b) [Respondent 1] mainly replies that . . .:

- the identity of its shareholders is not relevant in this arbitration since the Parties to the proceedings are corporate entities standing on their own with no liability flowing through to their individual shareholders.

- while it is true that [Respondent 1] has not provided the financial information requested by the Procedural Order of . . . July 2000, it must be taken into consideration that [Respondent 2] is a company in liquidation and itself has no assurance of continuing or of financial stability.

- [Respondent 2] has also acknowledged debts in favour of [Respondent 1].

- Until [Respondent 2]'s . . . 2001 payment of [Respondent 1]'s share and of [Claimant]'s share, [Respondent 1] had paid more than its share of the advance on costs.

15. Although the ICC Rules of 1988 and 1998 both lack an express provision concerning the power of an arbitrator to order as interim relief the provision of security for compliance with an arbitral award or for arbitration costs, such power is generally recognized in practice (see e.g. ICC Procedural Order 7489, 1993 published in the Collection of Procedural Decisions in ICC Arbitration 1993-1996, ICC Publishing 1996, p. 48; ICC Interim Award issued on 26.12.1990 in case No. 6697, Note by Prof. Pascal Ancel, p. 147).

16. To be granted, conservatory measures require the presence of an urgent need for protection. In the particular case of an order to provide security for compliance and for costs, such relief is justified if based on special circumstances. Firstly, the financial standing of the party from whom security is requested must be so precarious as to warrant fear that the party will not be able to fulfil its obligations resulting from the arbitral award and to reimburse the costs incurred by the other party in the course of the arbitration should the arbitral tribunal order reimbursement. Secondly, the merits of the claim in respect of which security is requested must have been sufficiently established (on this subject see the French procedure of "référé provision" which provides that the claims must be "not seriously disputable": cf. Fouchard Gaillard Goldman, International Arbitration, 1999 Kluwer Law International, No. 1339).

17. In the present case, the situation is as follows:

a) The arguments that have been raised by [Respondent 2] indicate with sufficient likelihood that [Respondent 1]'s financial situation cannot be considered reliable. As has already been pointed out in the Procedural Order of . . . July 2000, [Respondent 1] has expressly acknowledged in these proceedings that it is a mere nominee company . . . and, moreover, its only known shareholder . . . is a company that has been dissolved for insolvency. The dissolution having taken place [at the beginning of] 2000 . . ., it is not possible to see how [Respondent 1's shareholder] can have remained a shareholder of [Respondent 1], as stated [at the end of] 2000 by [Respondent 1] . . . Contrary to [Respondent 1]'s contentions, sufficient information about the identity of the shareholders of a company is relevant so as to make sure that the latter is not an "empty shell" with no real financial capacity. The doubt already present in July 2000 about [Respondent 1]'s financial status was heightened in the further course of these proceedings when [Respondent 1] informed the sole arbitrator that, despite the terms of the Procedural Order of . . . July 2000, [Respondent 1] would not disclose its financial statements, and did not indicate any reason for this attitude. Financial statements are essential and elementary elements for ascertaining the financial situation of a company. These documents could have been disclosed by [Respondent 1] quite easily and without inconsiderate prejudice to its trade secrets. Their production would also have been fair considering [Respondent 2]'s own disclosure of [the joint venture's] financial statements as ordered by the sole arbitrator at [Respondent 1]'s request.

No guarantee or positive information could otherwise be provided by [Respondent 1] to dispel the doubt as to its financial capacity. [Respondent 1]'s representative . . . limited himself to recalling that [Respondent 2] itself was in liquidation and financial difficulty. Even if not disputed, this argument is not relevant to the only issue at stake, i.e. the soundness of [Respondent 1]'s financial situation.

b) The validity of [Respondent 2]'s claim of . . . against [Respondent 1] has been acknowledged in [Respondent 1]'s brief dated . . . 1999 . . . [Respondent 1's representative] also did not deny this debt at the meeting held in Paris on . . . 2001. He only argued that the debt had to be considered "in the total concept of resolving all the outstanding issues" and that [Respondent 2] would also have acknowledged debts in favour of [Respondent 1].

The sole arbitrator deems that, inasmuch as [Respondent 2]'s claim of . . . has not been disputed by [Respondent 1] and has even been expressly acknowledged, the merits thereof can be held as sufficiently established.

c) Although it is true that, on the one hand, [Respondent 1] has not paid its share of the . . . adjustment requested from the [Respondents] in respect of the increased advance on costs and that, on the other hand, [Respondent 2] has to date contributed a much more greater [sic] portion of the total advance on costs paid to date . . . than [Respondent 1] . . ., it must be recalled that [Respondent 1] has in the whole paid more than its share of the [Respondents]' part. While [Respondent 2]'s and [Respondent 1]'s part of the advance on costs totalled . . ., i.e. . . . each (cf. Art. 9(2) of the ICC Rules), [Respondent 1] has in fact paid in . . ., i.e. more than [Respondent 1]'s share. This situation is due to the fact that [Respondent 1] had previously paid [Claimant]'s share at the time of the first increase of the advance on costs. There is therefore no reason to order [Respondent 1] to provide security for the costs advanced by [Respondent 2] in this arbitration. It would indeed be unfair to make [Respondent 1] suffer [Claimant]'s failure to advance the costs that [Claimant] undertook to pay when signing the arbitration agreement. Besides, a grant by the sole arbitrator of an order requiring [Respondent 1] to deliver a security to cover [Respondent 2]'s arbitration costs would be tantamount to prejudging the merits of the case.

d) It appears from the rather vague wording employed by [Respondent 2], that the requested security is also intended to cover legal fees ("the substantial expenses involved in this arbitration").

The sole arbitrator holds that legal fees cannot be taken into consideration when fixing the amount of the security, given that the fees have not been quantified and that the outcome of the dispute between the Parties is still uncertain at this stage of the proceedings.

18. In conclusion, [Respondent 2]'s application for security is accepted in the amount of . . ., i.e. the amount of the debt that has been acknowledged by [Respondent 1] in favour of [Respondent 2].

19. Remaining to be fixed are the terms of the security:

[Respondent 1] shall within thirty days from the date of this Interim Award put up security in favour of [Respondent 2] in the amount of . . . in the form of a guarantee issued by a first class bank having offices in Geneva (the place of arbitration). The guarantee shall upon presentation to the issuing bank of a copy of the Final Award certified by the ICC Court of Arbitration under Art. 23(2) of the Rules be payable in such of the amount of [Respondent 2]'s . . . claim against [Respondent 1] as the Final Award shall have granted.

B. The request submitted by [Claimant]

20. [Claimant] requests [Respondent 1] to provide [Claimant] with a bank guarantee in the amount of . . . [Claimant] does not specify the claims and/or costs to be covered by the requested security. The request simply refers to "the same reasons and regulations invoked by [Respondent 2] in its application".

[Respondent 1] requests the sole arbitrator to dismiss [Claimant]'s request.

21. Concerning the sole arbitrator's power to rule on [Claimant]'s application for security and the conditions that must be satisfied as justification for such a measure, the sole arbitrator refers to what was said above with respect to the request filed by [Respondent 2] (cf. supra No. 15-16).

22. Remaining, thus, to be examined is whether [Claimant]'s application for security is well founded.

a) Unlike [Respondent 2], [Claimant] does not rely on a debt expressly acknowledged by [Respondent 1]. It seems from the very vague wording of [Claimant]'s application that the requested security is intended to cover [Claimant]'s claims in general. The sole arbitrator deems that an order to provide security for these claims entered at this stage of the proceedings would be equivalent to prejudging the merits of the case. Such relief cannot, therefore, be granted insofar as [Claimant]'s claims against [Respondent 1] are concerned.

b) As to arbitration costs, [Claimant] having failed to pay most of its share of the advance on costs, partly paid instead by [Respondent 1] as stated above (cf. supra No. 17c), it would be ill-placed to require security for this purpose.

As ruled above concerning [Respondent 2]'s application, no security will at this stage of the proceedings be ordered to cover [Claimant]'s legal fees to date, which also have not been quantified.

23. In conclusion, [Claimant]'s request for security is dismissed.'