'The parties and their representatives

1. The Claimant … is a company incorporated and existing under the laws of [a US state] ("the Claimant"). …

2. The Claimant is represented in this arbitration by …

3. The Respondent is … a company incorporated and existing under the laws of [a European country] ("the Respondent'). …

4. The Respondent was represented in this arbitration (until notice given by letter dated …) by …

5. By letter … from [the law firm representing the Respondent] to the ICC Secretariat, [that law firm] stated:

We hereby confirm, for the avoidance of doubt, that we have no instructions to act on behalf of [the Respondent] in respect of the above Arbitration.

In the circumstances, we would be grateful if we could be removed from the record and all future correspondence on this matter be sent directly to [the Respondent].

6. From the receipt of that letter the Respondent has been without legal representation in this arbitration; and all communications by me have been sent by post to the Respondent's registered address or to the email account provided by [the law firm that formerly represented it].

7. I was informed by [the law firm formerly representing the Respondent] that [the contact for the Respondent] was the chief executive of the Respondent.

The Partial Award

8. I made a Partial Award dated and signed by me as Sole Arbitrator on 23 September 2011.

9. The Partial Award was notified to the parties by the ICC Secretariat ...

10. In this Final Award I adopt the full content of the Partial Award and in particular refer to the following:

(1) The arbitration agreement and the applicable law agreement (paragraphs 8-9);

(2) Procedural steps up to my appointment as Sole Arbitrator (paragraphs 10-15);

(3) My appointment as Sole Arbitrator (paragraph 16);

(4) Procedural steps following my appointment as Sole Arbitrator (paragraphs 17-27);

(5) The Terms of Reference (paragraphs 28-29); and

(6) The procedure adopted (paragraphs 30-33).

11. The ICC Rules of Arbitration that apply to this Arbitration are the 1998 ICC Rules (as set out in paragraph 10 of the Partial Award).

12. In the Partial Award I awarded, declared and directed that:

(1) I have jurisdiction to hear and determine the dispute referred to arbitration by the Claimant's Request for Arbitration ...

(2) The Respondent shall forthwith pay to the Claimant the sum of [amount].

(3) The Respondent shall forthwith pay to the Claimant interest to the date of this Award in the sum [amount].

(4) The Respondent shall pay simple interest at 1.5% per month on the principle sum of [amount] post Award until payment.

13. In the Partial Award I reserved for a further final award:

(1) The determination of the costs of the Arbitration (including the parties' costs and the costs of the Arbitrator and ICC); and

(2) Who should pay the costs and in what proportion.

The arbitration agreement and the applicable law agreement

14. One of the matters that I determined in the Partial Award was: "Is there in existence an arbitration agreement under the ICC Rules; and does the Arbitrator have jurisdiction to make an award?" I adopt the matters set out in paragraphs 37 to 55 of the Partial Award.

15. I concluded that there was an arbitration agreement between the Claimant and the Respondent in the terms of clause 19.10 (in each of the Agreements) and that the applicable law to the arbitration is English law. The text of clause 19.10 is as follows:

Binding Effect: Governing Law and Forum. This Agreement shall become valid when executed by Licensor and shall be governed by and construed under and in accordance with the internal laws of England without regard to its conflict of laws principles. The parties agree that any disputes arising in connection with this Agreement shall be finally settled by arbitration in London, United Kingdom under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules, provided that such choice of forum shall not affect or impair:

19.10.1 Licensor's right to seek injunctive relief at any time in any jurisdiction; and

19.10.2 the right of either party to enforce any award of the above-mentioned arbitrators in the courts of any jurisdiction.

The official language of arbitration shall be English.

Procedural history following the Partial Award

16. I notified the Parties and the ICC Secretariat by email … that in accordance with Article 22 of the Rules that I was satisfied that the parties had had reasonable opportunity to present their cases and I declared the Proceedings closed; and that no further submission could be made or evidence produced unless requested or authorised by me.

17. The Partial Award was signed by me on 23 September 2011.

18. By email to the Parties and the ICC Secretariat dated 30 October 2011, I invited the parties to make representations in writing (by email) to me on the following points (by 4 November 2011):

1. Does any party require me to set a hearing for making procedural order for the Final Award? Or

2. Are the parties content for me to make a procedural order following their written representations on procedure?

3.

The areas on which I require representations are:

a) The form of the representations/evidence:

i) Letter; or

ii) Signed statement

b. The date by which the parties will be able to serve the/representations/evidence.

c. Whether the parties would like a hearing or for me to make a determination based on representations/evidence.

19. I received:

(1) Representations in writing as to procedure (by email received on 4 November 2011) from the Claimant's representatives.

(2) No representations from the Respondent.

20. I made Procedural Order No. 3 dated 20 November 2011. The material parts of that Procedural Order were as follows:

A: Further representations

1. Each party shall by 30 November 2011 make representations in writing to the Sole Arbitrator (and copied to the other party):

1.1 Setting out the order it seeks as to costs.

1.2 The basis upon which the costs order should be made.

1.3 The amount of costs sought, together with a breakdown of the costs claimed.

2. Permission is given to each party to make:

2.1 A response representation (if it so wishes) in writing to the Sole Arbitrator by 7 December 2011 (and copied to the other party).

2.2. A reply to the above response (if it so wishes) in writing to the Sole Arbitrator by 9 December 2011 (and copied to the other party).

21. Following that Procedural Order I received:

(1) The Claimants' submissions on costs dated 29 November 2011.

(2) No representations from the Respondent.

Extension of time for rendering the Final Award

22. By letter dated 14 October 2011, the ICC Secretariat informed me that the ICC International Court of Arbitration extended the time limit for rendering the Final Award until 31 December 2011.

23. By letter dated 8 December 2011, the ICC Secretariat informed me that the ICC International Court of Arbitration extended the time limit for rendering the Final Award until 31 March 2012.

Closure of the Proceedings

24. I notified the Parties and the ICC Secretariat by email dated 23 February 2012 that I was in accordance with Article 22 of the Rules I was satisfied that the Parties had had a reasonable opportunity to present their cases and I declared the Proceedings closed.

The issues on costs

25. The Respondent has made no representations; and has not responded to any communications from me; not even to acknowledge receipt of letters or emails.

26. I identify the issues as to costs as follows:

(1) The principle of costs, i.e. whether there should be any order as to costs; and if so,

(2) The determination of the amount of costs.

The principle of costs

27. The Claimant submitted in its representations dated 29 November 2011 that:

(1) Article 31(3) of the ICC Rules provides me, as Sole Arbitrator, with the power to decide either that one party shall bear the costs in their entirety, or that they shall be apportioned between the parties in a manner that I, as Sole Arbitrator, consider appropriate.

(2) As the seat of the Arbitration is England, section 61 of the Arbitration Act 1996 also applies, re-asserting the power of the Sole Arbitrator to allocate the costs of the Arbitration as between the parties.

28. I am satisfied that I have the power to award costs. Article 31(3) of the ICC Rules expressly requires that:

The final award shall fix the costs of the arbitration and decide which of the parties shall bear them or in what proportion they shall be borne by the parties.

29. The seat of this arbitration is England. Section 61 of the UK Arbitration Act 1996 applies. It provides as follows:

(1) The tribunal may make an award allocating the costs of the arbitration as between the parties, subject to any agreement of the parties.

(2) Unless the parties otherwise agree, the tribunal shall award costs on the general principle that costs should follow the event except where it appears to the tribunal that in the circumstances this is not appropriate in relation to the whole or part of the costs.

30. I have to exercise my power reasonably. The points advanced by the Claimant in favour of an order for costs are in summary:

(1) That the Claimant has prevailed in almost the entirety of its claim;

(2) The Respondent failed to even enter a defence; and

(3) That only a small amount of the Claimant's case was disallowed relating to less than 1% of the value of the claim.

31. Although the Respondent failed to enter a defence, in determining costs I do not hold that to be an important factor in determining costs. In my view the more powerful factor is that the Claimant succeeded in its claim. I made a Partial Award in the principal sum of [amount] plus interest. That was the full amount of the claim referred to arbitration.

32. I had disallowed minor additional invoices, which were submitted after the claim had been referred to arbitration, as they did not fall within the Terms of Reference, but those invoices did not involve any substantial time or cost within the context of this dispute. Accordingly I consider that the Claimant has succeeded fully in its claim; and further conclude that the Respondent should pay the Claimant's costs.

33. The Claimant has sought an award of costs on an indemnity basis. It has been urged upon me that such an order should be made because the Respondent did not put in a defence; did not participate in this arbitration; and disinstructed lawyers, all as a deliberate tactic to delay the payment of monies and requiring the Claimant to incur additional costs.

34. I remind myself that an indemnity order for costs is not penal, but should be made only where a party's conduct in the dispute or the arbitration was unreasonable or there has been conduct that takes it out of the norm. Whilst cooperation is hoped for and expected in arbitration, I do not consider the circumstances of this case justify an award of costs on an indemnity basis.

35. In any event, the primary distinction between indemnity and standard costs is (1) in standard costs the burden of establishing that the costs incurred are reasonable is one on the receiving party; and (2) in indemnity costs the burden is reversed, namely the paying party has to establish that the costs incurred are unreasonable. I note that I have not had any representations from the Respondent that the costs sought by the Claimant are unreasonable.

The assessment of costs

36. The costs claimed by the Claimant are:

(1) Fees and expenses of the Sole Arbitrator and ICC administrative expenses,

(2) Costs of legal representation,

(3) Other costs related to the arbitration.

37. Fees and expenses of the Sole Arbitrator and ICC administrative expenses.

(1) The Claimant has placed the sum of [amount] on deposit including both its own 50% share of the advance on costs related to the administrative expenses of the arbitration and the fees of the sole Arbitrator; and the Respondent's 50%, the Respondent having failed to pay the same.

(2) The Claimant seeks that it should be reimbursed the full sum ... I can see no reason to depart from the principle that costs follow the event and award and direct that the Respondent do pay to the Claimant (by way of reimbursement) the full amount ...

(3) The Claimant seeks the costs of the Arbitration as fixed by the Court. These have been fixed by the Court at [amount].

(4) I award and direct that the Respondent shall bear the costs of the Arbitration in the [aforementioned amount] and shall forthwith reimburse that sum to the Claimant.

38. Costs of legal representation.

(1) The sum claimed by the Claimant is [amount].

(2) A breakdown was attached to the Claimant's submissions dated 29 November 2011. The hourly rates claimed range from GBP100 per hour for a para-legal to GBP 500 for a partner. The bulk of the work done was by an associate at GBP 350 per hour.

(3) I have received no comment or criticism from the Respondent of either the hourly rates or the work undertaken. The hourly rates appear to be consistent with rates charged in London. The total hours spent (as seen from the breakdown) is 82 hours. This does not seem excessive to me; and the total amount claimed is certainly proportionate to the amounts claimed and ultimately awarded by me in the Partial Award.

(4) I therefore award the sum of [amount claimed] to the Claimant.

39. Other costs related to the arbitration.

(1) The Claimant seeks [amount] for photocopying, courier charges and company search. No objection has been raised in respect of these sums. They appear to be properly incurred.

(2) I therefore award and direct that the Respondent shall pay the sum of [amount claimed] to the Claimant.

Award

40. I award, declare and direct that:

(1) The Respondent shall bear the costs of the Arbitration as fixed by the Court in the amount of … and shall forthwith reimburse that sum to the Claimant.

(2) The Respondent shall forthwith pay to the Claimant the sum of … in respect of legal costs and other expenses.

(3) All other requests and claims are rejected.'