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Practising VirtueInside International Arbitration$
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David D. Caron, Stephan W. Schill, Abby Cohen Smutny, and Epaminontas E. Triantafilou

Print publication date: 2015

Print ISBN-13: 9780198739807

Published to Oxford Scholarship Online: January 2016

DOI: 10.1093/acprof:oso/9780198739807.001.0001

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Non-Payment of Advances on Costs

Non-Payment of Advances on Costs

No Pay, Can Play?

(p.330) 20 Non-Payment of Advances on Costs
Practising Virtue

Neil Kaplan

Oxford University Press

This chapter examines non-payment of cost advances by the respondent in an international arbitration. It sets out various arbitral procedural rules that deal with cost advances but do not expressly grant the tribunal power to make an award regarding non-payment of an advance. It discusses the first International Criminal Court (ICC) case to highlight the issue—ICC Case 7289. It then explores the contractual, provisional measures and institutional approaches to a tribunal’s power to make an award regarding unpaid advances on costs and rules of procedure that expressly empower tribunals to make such awards. The system of cost advances under the International Centre for Settlement of Investment Disputes Convention system is then surveyed. Finally, a unique mechanism that has emerged at the Permanent Court of Arbitration in the context of arbitration involving states is decribed, and an option to litigate against the defaulting respondents is discussed. The chapter concludes that most procedural rules do not expressly provide for tribunals to make awards regarding non-payment of advances, and the contractual approach uses the correct theory to analyse tribunals’ powers to make such awards.

Keywords:   non-payment, cost advances, international arbitration, arbitral tribunals, ICC Case 7289, International Criminal Court

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