‘1. The Sole Arbitrator has duly taken note of and has considered all arguments relating to Claimant’s request to submit a new claim ... (“Request”) and Respondent’s comments on Claimant’s Request ...

3. In taking her decision on Claimant’s Request, the Sole Arbitrator has to consider and apply Article 23(4) of the Rules.

4. Article 23(4) of the Rules provides that:

After the Terms of Reference have been signed or approved by the Court, no party shall make new claims which fall outside the limits of the Terms of Reference unless it has been authorized to do so by the arbitral tribunal, which shall consider the nature of such new claims, the stage of the arbitration and other relevant circumstances.

.........

6. The Sole Arbitrator first notes that Article 23(4) of the Rules does not require a party to request leave from the arbitral tribunal before advancing what might potentially be a new claim. Yet, as to the moment in time when such new claim is made, the Sole Arbitrator should consider whether “there are good reasons why the claim was not made earlier and whether the attempt to make a new claim is abusive, designed merely to delay the arbitration or to surprise the other side” (cf. Fry/Greenberg/Mazza: The Secretariat’s Guide to ICC Arbitration, 2012, para. 3-906). Similarly, “if the new claim is filed at a time that allows the other side to respond to it without seriously delaying the timetable that was previously agreed, there would be no reason not to admit it, even if such claim could have been submitted before” (Bühler/Webster: Handbook of ICC Arbitration, 2nd edition 2008, para. 19-17).

7. At present, the triggering event giving rise to Claimant’s Request, i.e. Respondent’s calling of the Performance Security and payment performance by [bank], took place [21 days and 10 days prior to the submission of the Request], respectively. Hence, Claimant could not have advanced the Request earlier, and the period of time between [the date of payment performance] and the date of filing of Claimant’s Request ... appears neither as an attempt to delay the proceedings nor abusive in view of the present circumstances. In passing, the Sole Arbitrator notes that – undisputedly – Claimant’s Request was a consequence of a recent act by Respondent, and Respondent does not contend that Claimant could have anticipated the facts, circumstances and claims giving rise to the Request when the Terms of Reference were signed in early [the previous month].

8. Thus, while Claimant’s Request is neither abusive nor, in view of the current stage of the proceedings, disruptive, the Sole Arbitrator agrees with Respondent that it should have ample opportunity to reply to Claimant’s submission ... Indeed, “another factor to take into consideration is the opposing side’s ability to defend itself against the new claim without undue delay” (cf. Fry/Greenberg/Mazza: The Secretariat’s Guide to ICC Arbitration, 2012, para. 3- 906).

9. Respondent will therefore be granted the opportunity to submit its Answer on Claimant’s new claim before the Hearing takes place [some two months later]. The overall conduct of the proceedings and the envisaged Procedural Timetable are thereby not negatively affected.

10. As to the question of whether or not Claimant’s Request indeed constitutes a “new claim”, the Sole Arbitrator will refrain from taking a final decision on the nature of the Request, thereby leaving open whether its admission is strictly required.

11. Yet, for the avoidance of doubt and in order to give the Parties clear guidance, the Sole Arbitrator hereby admits the claim referred to in Claimant’s Request ...

12. In doing so, the Sole Arbitrator has considered that arbitral tribunals acting under the ICC Rules have adopted different approaches as to what may constitute a “new claim” and what may be a request, claim or alteration of a prayer for relief that falls within any given Terms of Reference (cf. Derains/Schwartz: A Guide to the ICC Rules of Arbitration, 2nd edition 2005, page 269).

13. The Sole Arbitrator notes that the claim and overall facts referred to in Claimant’s Request are based on the same Contract, and that they do not depart substantially from what is otherwise contained and envisaged in the Terms of Reference – even if certain facts thereof occurred after the filing of the Request for Arbitration and the execution of the Terms of Reference. The admission of the Request will, in any event, not require the proceedings to take a significantly different direction (cf. Fry/Greenberg/Mazza: The Secretariat’s Guide to ICC Arbitration, 2012, para. 3-904).

14. Moreover, requiring the Parties to litigate over the claim, which is so closely linked to the Parties’ present dispute, in separate arbitration proceedings, would be highly inefficient and put an additional burden on both Parties.

15. Any amendment of the Terms of Reference as a consequence of the admission of the Request is neither foreseen under the Rules nor necessary at present. Hence, in view of the Sole Arbitrator’s above decision, the claim contained in Claimant’s Request now forms part of the present proceedings and its merits will be decided upon by the Sole Arbitrator after having received Respondent’s Answer thereon and after having heard the Parties at the Hearing.

16. With respect to Respondent’s request that the Sole Arbitrator should “oblige the Claimant to pay the relevant costs of arbitration as regards its New Claim”, the Sole Arbitrator notes that, indeed, the amount in dispute has now been increased by ... However, it is for the ICC Court, and not for the Sole Arbitrator, to decide whether or not the advance on costs shall be adjusted in light of Claimant’s additional relief sought. The Sole Arbitrator trusts that the ICC Secretariat, which receives a copy of this Procedural Order, will take the necessary steps in order for the ICC Court to decide whether or not a reconsideration of the advance on costs is warranted.’