‘1. … Claimant filed with the Arbitral Tribunal a request for an interim and conservatory measure pursuant to Article 23 of the ICC Rules. Claimant requests that the Arbitral Tribunal enjoins Respondent to ‘‘provide for sufficient security for costs in respect of Claimant’s advances on costs and lawyers’ fees … by way of a bank guarantee or similar form of security”.

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4. In support of its request Claimant argues as follows:

(i) The Arbitral Tribunal has the power to grant the requested measure. Indeed, pursuant to Article 23 of the ICC Rules, the Arbitral Tribunal is authorized to order any interim or conservatory measures “it deems appropriate” including orders for security for costs.

(ii) New elements concerning Respondent’s financial situation have emerged as of the time … when the Arbitral Tribunal issued Order No. 2 rejecting Claimant’s previous request for security for costs. It currently appears that (a) Respondent is in a critical financial situation and is kept artificially alive for expected payments from [another arbitration] and from the present arbitration; (b) the present arbitration has completely changed its dimensions due to Respondent’s counterclaims triggering enormous expenditures of time and costs for Claimant; (c) Respondent’s counterclaims are disproportionate in the amount and it is likely that they have been filed so as to increase its “assets” vis-à-vis creditors; actually, the only assets of Respondent are the alleged claims raised in the arbitration proceedings; (d) the liquidators are trying to conceal Respondent’s real financial situation by delaying the filing of the financial statements; (e) Respondent may decide at any time to step into bankruptcy leaving Claimant to face the risks for costs of the arbitration greatly increased by Respondent’s counterclaims, without any possibility of reimbursement.

(iii) The documents submitted by Respondent … attest that Respondent’s financial situation is disastrous and liquidation could be turned into bankruptcy at any moment. The losses amount to over 13 million euros while the capital does not exceed 3.7 million euro. Furthermore, the liquidators admit the existence of cash flow problems and explicitly link the outcome of the liquidation to the result of the arbitration.

5. Respondent counters Claimant’s arguments on the following grounds:

(i) Respondent’s counterclaims reflect the high prejudice suffered by it as a result of Claimant’s contractual breaches. They have not been made up for the purpose of the arbitration. Respondent has produced evidence of the many complaints made by itself or the final customer … during the contractual relationship.

(ii) According to the relevant doctrine and case law (a) arbitral tribunals should grant security for costs prudently in order not to obstruct the access to arbitral justice; (b) a request for security cannot be sufficiently based on the fact that a party is suffering financial difficulties or is the subject of bankruptcy proceedings; (c) the payment of the advance on costs made by Respondent should be considered as a sufficient safeguard to exclude any abusive and extravagant claims; (d) security for costs cannot be used to prevent a financially weaker party from pursuing its rights; (e) undertakings must be aware of the economic hazards that may affect the solvability of their partners and should organize their protection by contractual arrangements; it is not for the Arbitral Tribunal to remedy the absence of such arrangements.

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7. The Arbitral Tribunal deems it appropriate to grant the measure requested by Claimant in the amount and with the modalities specified in paragraphs 9 and 10 below.

(i) As evidenced by the ICC arbitration practice, Article 23 of the ICC Rules enables the arbitrators to adopt a broad spectrum of interim and conservatory measures such as the one presently discussed. Indeed, the existence of such power has not been challenged by Respondent.

(ii) … the Arbitral Tribunal rejected Claimant’s previous request for security for costs on the grounds that Respondent was a company in voluntary liquidation, not in bankruptcy. In fact, failing other convincing elements, the status of liquidation does not per se provide evidence of financial incapability or insolvency. However, at the hearing … new elements arose attesting the risky financial situation of Respondent. In particular (a) the liquidators testified that the company is in clear difficulty and that the outcome of the liquidation is closely linked to the outcome of the pending arbitral proceedings; (b) the financial statements … show liabilities of 13 million euros; (c) the company does not have assets readily available to pay out its creditors at the moment; (d) the most substantial receivables of the company are the claims brought in the current arbitration and [another arbitration].

8. In light of the foregoing there is a real risk that Respondent may be unable to reimburse Claimant’s costs if the latter’s claims and defences are ultimately successful. On the other hand, such costs have been increased as a result of Respondent’s counterclaims, which greatly exceed in size Claimant’s claims. The Arbitral Tribunal deems, therefore, that there is scope for granting the relief requested by Claimant. It is, however, in the nature of a security for costs to deploy its effects only in the future. Hence, in our case, the security is to be limited to the residual costs Claimant has to sustain up to the end of the arbitration proceedings, i.e. the preparation of the post-hearing briefs.

9. As to the amount of the security, the majority of the Arbitral Tribunal is of the opinion that it should be fixed in the amount of … Such amount is deemed to reasonably cover Claimant’s legal costs for preparing the post-hearing briefs. It has been calculated by roughly estimating lawyers’ rates and number of hours which should be necessary to this effect.

10. Respondent has to comply with the present order by means of a bank guarantee to be issued in favour of Claimant by [date]. Evidence thereof shall be timely forwarded to Claimant, arbitrators and the ICC Court Secretariat.

11. The Arbitral Tribunal, while granting the security for costs as indicated above, deems it necessary to state that the present order does not prejudice in any way the final award on the merits of the case and, thus, it may not be construed as a determination, summary or otherwise, in advance of the final decision of the arbitrators.’