ICC Awards

3. Considerations of efficiency and of balancing the parties’ rights do not make a stay mandatory

35. As stated above, a stay of an arbitration may also be granted if the arbitrator, in his or her discretion, considers that – on balance of the parties’ interests – those of the requesting party outweigh those of the party opposing the request for a stay.¹ Commentators have similarly stated that "the decision to stay is essentially a question of efficiency and of weighing the interests between the necessity of continuing the arbitration rapidly and the risk of unnecessary operations and costs or, worse, of conflicting decisions".²

36. The Respondent argues that a four-month stay of the arbitration would not cause any harm to the Claimant – save for short-term, minor financial losses that, if proven, could easily be compensated by an award of interest, but that the Respondent would suffer substantial losses if it was proven through the ongoing investigations that [Claimant] breached anti-corruption regulations. A stay would therefore be proportionate in that the risk the Respondent seeks to protect itself against outweighed any risk or harm to the Claimant.³

37. The Claimant disagrees and submits that a "[s]tay of the Arbitration would cause unconscionable harm to Claimant"⁴ which "would be particularly serious since the amount of the invoice in dispute, [amount], a modest amount for Respondent, makes up for a significant chunk of Claimant’s earnings for the fiscal year Y". The Respondent contests this as unproven and argues that, more generally, the Claimant had not established any concrete harm it would face as a result of a stay. In any event, according to the Respondent, "no order made by the Sole Arbitrator in [Y+1] or [Y+2] could impact on [Claimant's] [year Y] earnings accounts".⁵

38. The Sole Arbitrator considers that a claimant’s interest in having its claim decided in an expeditious manner, as agreed upon by the Parties when choosing to apply the ICC Rules, cannot be neutralized by the possibility of delay in this respect being compensated by payment of interest. Contrary to what may be the case in applications for interim measures, when resisting an application to stay proceedings, the burden is not on the claimant to show a particular urgency in reaching a final award. Rather, it is for the applicant for the stay to establish the existence of exceptional circumstances that justify a stay. The possibility to increase efficiency and achieve overall cost savings could conceivably constitute such circumstances. However, this could not apply to cases – such as the present – where the delay in question is caused by the party applying for the stay. Even if there is a possibility that it would be more time- and cost-efficient to await the outcome of the anti-corruption due diligence process, given that, as it states, the Respondent would be likely to pay the disputed invoice if [the Claimant] were cleared in that process, it cannot be for the Respondent to impose its own timing of payment on ongoing arbitration proceedings, over the Claimant’s objections. Similarly, the fact that the decision whether it ends up paying the invoice in question or not – and thus whether an ongoing arbitration would have turned out to be inefficient – would be entirely in the Respondent’s sphere, is another reason not to grant a request a stay the arbitration in the interest of efficiency.

39. For these reasons, the Sole Arbitrator reaches the conclusion that the Respondent’s Stay Application has to be denied.

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