The first of the two claimants, both German companies belonging to the same group, entered into a contract with the respondent, an Egyptian company, relating to an engineering and construction project in Egypt. Both claimants were involved in the performance of the contract. The claimants initiated the arbitration to obtain payment of sums they claimed were due for the work carried out under the contract. They sought a partial award ordering immediate payment by the respondent of amounts owed.

L'une des demanderesses, deux sociétés allemandes faisant partie du même groupe, conclut avec la défenderesse, une société égyptienne, un contrat portant sur un projet d'ingénierie et de construction en Egypte. Les deux demanderesses participaient à l'exécution de ce contrat. Les demanderesses introduisirent une demande d'arbitrage pour obtenir le paiement des sommes qu'elles prétendaient leur être dues pour les travaux réalisés conformément au contrat. Elles sollicitèrent du tribunal arbitral une sentence partielle ordonnant à la défenderesse de payer immédiatement les sommes dues.

El primero de los dos demandantes, ambos sociedades alemanas pertenecientes al mismo grupo, celebraron un contrato con el demandado, una sociedad egipcia, relativo a un proyecto de ingeniería y construcción en Egipto. Los dos demandantes participaron en la ejecución del contrato. Los demandantes iniciaron el arbitraje para obtener el pago de sumas que ellos afirmaban que se les adeudaban en concepto de actividades realizadas con arreglo al contrato. Estos solicitaron un laudo parcial ordenando el pago inmediato de los importes adeudados por el demandado.

'13. The Claimants applied, by letter dated ... 2003, for directions against the Respondent for immediate payment in the amount of ... , together with interest. The Claimants contended that the Respondent's Statement of Case conceded a net liability on the part of the Respondent, to the Claimants, of at least [the aforementioned amount]. The Claimants argued that, in light of the Respondent's acknowledgement, they were entitled to directions for immediate payment of the amounts admittedly owed, together with interest.

14. The Respondent, by letter dated ... 2003, opposed the Claimants' application for directions requiring the Respondent to make immediate payment in the amount of... The Respondent contended that it would seek costs from the Claimants (reflecting the costs of the arbitration, including the costs of legal representation) and that this could result in the Claimants owing the Respondent in excess of the admittedly owing sum of ... As a consequence, the Respondent claimed that no interim or immediate award should be made in the Claimants' favour.

15. The Claimants, by letter dated ... 2003, argued that costs normally follow the event and should therefore not be considered in determining undisputed liabilities. The Claimants renewed their application for directions, or an order, for the immediate payment of that sum.

16. The parties' counsel made oral submissions at a hearing on ... 2003 concerning the Claimants' application. The Claimants renewed their application for an immediate order (or an award) in the amount of ...

17. The tribunal concludes that a partial award against the Respondent, in favour of the First Claimant, in the principal amount of ... is appropriate. It is common ground that the Respondent acknowledges liability to the First Claimant in an amount of ... It is also common ground that the Respondent asserts counterclaims against the First Claimant in an amount of ..., producing a total admitted liability to the First Claimant of ...

18. There is no reason that the First Claimant should be required to wait until the end of the arbitral process, which is designed and scheduled in order to permit a complete and thorough consideration of disputed amounts, before obtaining payment of undisputed amounts. Insofar as an amount is undisputedly owed by one party to another, without set-offs of other crystallized amounts having been asserted, there is no justification for denying the creditor the amounts concededly due to it. Doing so would expose the creditor to credit risks, exchange rates fluctuations and other uncertainties to [sic] which it ought not, insofar as possible, be obliged to bear.

19. The tribunal does not consider that the Respondent's unquantified (and essentially, at this stage of proceedings, unquantifiable) claim for costs to [sic] alter the foregoing analysis. Each party has (and will have) claims for the costs of the arbitration against the other; the total amounts of such claims are not currently quantifiable, nor can the likelihood of success by either party on such claims currently be realistically assessed. Because there are no cost orders, and no quantifiable costs liabilities, against the Claimants there are no set-offs arising from such potential liabilities currently available to the Respondent. In these circumstances, it is appropriate to disregard the parties' respective claims for costs in determining the net amounts admittedly owed by one party to the other.

20. Accordingly, in light of the Respondent's admitted liability for ..., the tribunal concludes that it would be just and appropriate to make a partial award against the Respondent in this amount, in favour of the First Claimant. The tribunal does not make any award in favour of the Second Claimant (in light of the Respondent's jurisdictional objections to the Second Claimant's claims in this arbitration, which remain reserved for decision in the course of these proceedings).

21. In reaching this decision, the tribunal has of course considered whether it possesses the power to make a partial award in the terms set forth above. The tribunal considered this issue, following submissions from the parties, in making its interim award, and reasoned (at paragraphs 54 and 55 of the Interim Award) as follows:

The tribunal observes, however, that it sees little force to the argument that it lacks the authority under Article 39 of the Arbitration Act 1996 to make a provisional award. Article 39 provides that "the parties shall be free to agree that the tribunal shall have power to order on a provisional basis any relief which it would have power to grant in a final award" (in subparagraph (1)) and "Unless the parties agree to confer such power on the tribunal, the tribunal has no such power" (in subparagraph (4)).

Article 23 of the ICC Rules provides that "unless the parties have otherwise agreed, as soon as the file has been transmitted to it, the Arbitral Tribunal may, at the request of a party, order any Interim or conservatory measure it deems appropriate". The reference to "any" interim "or" conservatory measure would appear to be drafted sufficiently expansively to constitute an agreement satisfying Article 39 of the Arbitration Act.

22. The tribunal has reconsidered this analysis, and continues to find it persuasive: Article 23 of the ICC Rules is clear and satisfies the requirement, set forth in Article 39 of the Arbitration Act, for an agreement empowering the tribunal to make awards on a "provisional" basis. Assuming that the current award involved a "provisional" award, Article 23 would therefore authorize the tribunal's action. In any event, the tribunal also observes that the current partial award does not appear to be "provisional" in the sense of Article 39 of the Arbitration Act, because it involves a final determination insofar as the sum of ... is concerned (based upon the admitted liability for such amount). In turn, Article 2(iii) of the ICC Rules plainly contemplates the making of partial awards (such as the present award). In either case, the tribunal is satisfied that it has the power, under the ICC Rules, to make the present award. The tribunal also concludes that, insofar as its decision involves the final resolution of liability for a specified sum of money, that it is appropriate for that decision to take the form of an award, rather than an order.'