Security for Costs in International Arbitration

I.  INTRODUCTION

In international arbitration, security for costs is an interim measure filed by the Respondent to a claim (or counter-claim). The purpose of such an application is to ensure that the Claimant is able to pay a potential adverse costs award rendered against it if the Respondent wins the claim.[1] Where a Respondent makes an application and the arbitral tribunal grants the order for security, the Claimant must pay the amount determined by the tribunal into an escrow account or some other form of security arrangement.[2] If the Claimant does not comply, the proceedings may be stayed or the claim may be dismissed.[3]

Security for costs in international arbitration is premised upon two competing policies. On one hand, an order for security for costs may be an obstruction against a Claimant’s access to arbitral justice. This is because it carries the potential to stifle a genuine claim should a Claimant be in a reduced cash flow position. On the other hand, refusing an order and allowing an impecunious Claimant to proceed places the Respondent at risk of being unable to enforce a potential costs award against the Claimant should the Respondent defeat the claim. Consequently, a balance must be struck between the competing policies. As will be later argued, this balance is determined based on the factual matrix of each individual case.

This article will discuss the substantive considerations available to a tribunal when determining whether to grant security for costs. While many institutional rules specifically provide a tribunal with the power to grant security for costs[4], they provide little guidance as to how that power should be exercised.[5] One aim of this article is to consolidate and evaluate the existing approaches employed by tribunals and commentators.

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II.  SUBSTANTIVE CONSIDERATIONS FOR GRANTING SECURITY

Security for costs is a unique type of interim measure that requires consideration of specific criteria.[6] The generic criteria for the determination of ordinary interim measures such as injunctions are not very useful in evaluating security for costs requests.[7] For example, the requirement of “urgency” is unhelpful because security for costs acts to pre-empt the risk of a costs award being unrecoverable at the conclusion of the proceedings. To require “urgency” would defeat the purpose of this pre-emptory measure.

Although there is presently no uniform test for evaluating security for costs requests[8], a widely accepted guiding principle is that it must be fair and just in all the circumstances for security to be imposed.[9] This broad proposition, while it is difficult to refute in principle, nonetheless requires to tribunal to turn its mind to the question as to what are the ingredients of each factual matrix that would render it fair and just to impose security for costs.

This section will attempt to provide a key list of these ‘ingredients’, some of which are necessary to justify an order for security, while others are merely factors either in favour of or against security. It is suggested that considerations of fairness and justice rest upon two initial requirements:

1. it is possible for the tribunal to make a costs award; and
2. there is a serious risk that the Respondent will not be able to enforce a potential costs award.

These factors are minimally necessary for an order for security to be justified, even though they are by no means conclusive.

Additional factors may then contribute to favouring or militating against granting such an order. The tribunal should in its final analysis consider all such relevant facts to determine if it is fair and just to order security and its appropriate amount, to strike an appropriate balance between the Claimant’s right of access to justice and the Respondent’s justified need for security.

All of these considerations will be briefly presented in the framework below for easy reference and then elaborated upon in turn.

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Framework

 

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Preliminary Requirement – (1) It is possible for the tribunal to make a costs award

Redfern rightly suggested that an application for security should only succeed where the legal environment is one in which there is a real possibility that the winning party will be awarded costs.[10] The rationale for this is straightforward: there is no reason to order a Claimant to provide security for the Respondent’s costs if a costs award is not even a possibility.

However, it would arguably be rare to find situations where it is impossible for a tribunal to issue a costs award. This is because most institutional rules as well as domestic arbitration laws give tribunals full discretion in the allocation of costs. Furthermore, it is increasingly common for tribunals to adopt the general principle that costs follow the event in the context of international commercial arbitration. The only conceivable (and unlikely) scenario would be where parties have specifically agreed that costs would be borne individually regardless of the outcome of arbitration. Therefore, this preliminary requirement would be satisfied in most cases.

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Preliminary Requirement – (2) Serious risk that the Respondent will not be able to comply with a potential costs award

The risk of the Respondent being unable to comply with a cost order is the fundamental issue that the interim measure of granting security for costs aims to address.[11] If there is no serious risk of the claimant’s inability to pay, arbitrators should “refrain from ordering security as a protection against a possible change in the claimant’s finances.”[12] This requirement of serious risk must be proven on the evidence available at this stage of the proceedings by the Respondent seeking security for costs.

In general, there are three categories of scenarios in which such a risk has been found:

1. the Claimant’s lack of assets; or
2. the Claimant’s assets are inaccessible for effective enforcement; or
3. the Claimant’s words or conduct demonstrate a serious risk that enforcement will be ineffective.
   
   

Claimant’s lack of assets for enforcement

The onus is on the Respondent to show “reasonable grounds” for concluding that the Claimant will not have the funds to pay the potential costs award.[13] This could be done by providing credible testimony from sources having knowledge of the Claimant’s financial affairs, or relevant documents such as audited accounts.[14] A tribunal may also grant discovery orders for the purpose of allowing the Respondent to obtain and scrutinise the Claimant’s specific accounting data and financial records.[15] Where a Claimant fails to comply, adverse inferences may be drawn against it (see category (c) below relating to how a Claimant’s conduct may justify imposing security against it).[16]

The fact that a Claimant is in receivership or has entered into a voluntary arrangement with creditors may be sufficient. Other examples include a Claimant that is insolvent, experiencing serious cash-flow problems or a lack of working capital, or a Claimant that is a mere shell company.[17] In the latter case, the Respondent’s concerns may be satisfied if the Claimant is able to demonstrate that it carries sufficient assets.

Claimant’s assets are inaccessible for effective enforcement

The location of the Claimant’s assets is a legitimate consideration if enforcing a cost award would be more difficult or uncertain than would normally be expected.[18] Such situations would be unlikely because the New York convention has been ratified by over 150 countries.

It should be noted that the location of the Claimant’s assets is distinct from the place of residence of the Claimant. The latter is an irrelevant consideration. Security for costs should not be ordered simply on the basis that the Claimant has a foreign residence which is different from the country of the place of arbitration:[19]

 

“It is obvious that registration or domicile of the party outside the place of arbitration can not justify such an order, since such situation is in the essence of international arbitration.” – A S.p.A v B AG (25 September 1997), 2001 ASA Bulletin p 745.

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Irrelevant considerations relating to a Claimant’s (a) lack of or (b) inaccessible assets

 

For situations falling under (a) and (b), two common counter-arguments are commonly raised by Claimants to dissuade a tribunal from ordering security. First, the Respondent should not have the benefit of security because it had known and accepted the risks of the Claimant’s poor financial state or location of assets at the beginning of the contractual relationship.[20] Second, the burden of security should not be imposed on the Claimant because it did not act in bad faith to cause its lack or inaccessibility of assets.

These arguments have been accepted by some tribunals, with the result of the Respondents’ requests for security being denied. However, it is suggested here that these arguments are arguably flawed in principle:

‘Accepted business risks’

Some tribunals and commentators adopt the view that security for costs is not justified where the Respondent has accepted those risks at the start of the parties’ business relationship.[21] For example, if the solvency of a party was questionable at the inception of the parties’ commercial relationship, “arbitrators may consider that the inability to pay is no reason to order security as such a risk was a consequential effect of doing business with that party”.[22]

In ICC Case no. 7047 (1994), the Respondent requested for security for costs on the basis that the Claimant was incorporated in Panama as a shell company with no assets. It was further argued that there was “no bilateral convention of securing costs of arbitral procedures between Panama and Yugoslavia”. As a result, the respondents who were from Yugoslavia argued they were at risk of being unable to recover their costs. The tribunal rejected these arguments, explaining that these reasons were already known to the Respondents before signing the contract.[23]

In A. S.p.A v B AG (1997), an arbitration initiated under the Arbitration Rules of the Geneva Chamber of Commerce and Industry, the Respondent applied for security on the grounds that claimant had voluntarily filed for liquidation after the start of the proceedings. This was rejected by the tribunal, which explained that “the decision of A. to go into voluntary liquidation does not go beyond the commercial risks to be borne by the parties to an international contract.” [24]

Based on the same logic, the tribunal in ICC Case no. 15951/FM opined that security for costs is only justified if the risk (of being unable to enforce a potential costs award) increased considerably and unpredictably between the time of contracting and the arbitration process.[25] Security was thus not granted as there was no fundamental and unforeseen change in the financial situation of the applicant between 2000 and 2009.[26]

It is suggested that these positions are untenable in principle. The Respondent’s knowledge of the Claimant’s financial position when it entered into the contract should not justify denying it security because both parties consented to the prospect of a security order.

“If the tribunal has the power to order security for costs, this is part of what the parties have agreed. To exclude a power that might otherwise be exercised in the respondent’s favour by reference to the claimant’s financial position would be re-writing the agreement and is not reasonable. This is more so if the claim proves to be unmeritorious.  There is no reason to deem that a respondent has consented to pay the costs of defending an unmeritorious claim, without the benefit of security for those costs.”[27] – Redfern (emphasis added in underline)

Consequently, the Respondent did not undertake the specific risk of dealing with a financially insecure Claimant without the potential benefit of security for costs as the institutional rules of the arbitral tribunals allow for it. Even if the Respondent entered the contract knowing that the Claimant was in a poor financial state, it would still expect the potential benefit of an order for security because that was part of the arbitration agreement that parties consented to at the outset. Accordingly, there should be no need to show that there has been a significant or fundamental change in the Claimant’s circumstances since the start of the parties’ contract.

 Requirement of bad faith on the Claimant’s part

Beyond the Claimant’s lack or inaccessibility of assets, it is argued that there should not be an additional requirement that the Claimant must have acted in bad faith for security for costs to be justified. Security for costs is aimed at alleviating a Respondent’s risk of being unable to recover its costs after being brought to arbitration by a Claimant who eventually loses. From the Respondent’s perspective, its inability to recover awarded costs is equally detrimental regardless of whether the Claimant was acting in bad faith or not.[28]

If it is clear to the tribunal that the Claimant’s assets are insufficient or inaccessible to pay the costs of the arbitration, then it is prima facie fair to impose a certain amount of security that balances the Claimant’s right to access arbitration and the Respondent’s right to potentially recover costs, subject to other factors affecting this balance. The Claimant’s bad faith would be one such factor in favour of security as it suggests that evasive conduct would likely continue, but it should not be an automatic factor allowing security to be granted. In this regard, tribunals that have demanded proof that the Claimant had ‘organised or deliberately provoked its own insolvency in order to avoid the financial risks of an arbitral proceeding’[29] may have set the bar too high.

Claimant’s words or conduct show that there is a serious risk that enforcement will be ineffective

The third common scenario in which Respondents may face a serious risk of non-payment of costs is when the Claimant’s words or conduct reveal such a risk. This includes but is not limited to cases where the Claimant evinces an intention to avoid a potential costs award (bad faith).

It has been suggested that if the Claimant fails to produce accounts and documents to demonstrate whether it will be able to pay, or unreasonably delays their disclosure, arbitrators may infer that the failure or delay favours an order for security.[30] This is because a Claimant that is not forthcoming with information on its financial state raises reasonable suspicions as to its ability or intention to honour a potential costs award. Such an approach is arguably justified because the party against whom an order is sought is in the best position to provide evidence as to its financial situation.[31]

The Claimant’s past conduct in relation to costs is also relevant. In RSM Production Corporation v Saint Lucia[32], the tribunal decided to order security because of the Claimant’s history of consistently failing to pay advances or costs orders in other ICSID cases.

Furthermore, if the Claimant evinces bad faith, this would point towards a lower standard for tribunals to impose security on the Claimant under fairness considerations. Such scenarios include when the Claimant has deliberately organized its financial affairs so as to be unable to pay, possibly by hiding its assets or providing inaccurate information, or by taking any steps to frustrate a future costs award. Commentary states:

“It may happen that a party takes certain steps in order to divest itself from its assets so as to be just an empty shell in case it loses the arbitration. Such manoeuvres, contrary to good faith, could justify an order for security for costs.” – A S.p.A v B AG (25 September 1997), 2001 ASA Bulletin p 745 [33]

Additionally, with the development of the role of emergency arbitrators, security for costs may conceivably be requested on an urgent basis if Claimants start organising their assets in bad faith before the constitution of the tribunal. This is because institutional rules which provide for emergency arbitrators generally empower them to make any interim order a tribunal can make.[34]

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Additional factors to determine if it is fair and just in all the circumstances to order security

If there is found to be a serious risk that the Respondent will not be able to enforce a potential costs award, arbitrators must then look at a host of factors to determine if, in all the circumstances of the case, it is fair and just to order the Claimant to put up security for costs and its appropriate quantum. These factors vary in relevance with every case, and are by no means exhaustive given the myriad of possibilities in the factual matrix.

Respondent’s contribution to the Claimant’s impecuniosity

In situation (a) where a Claimant lacks assets, it would not be fair to demand security from him if such impecuniosity was caused by the Respondent’s very own acts or omissions. However, this test is not a simple exercise as it will likely require the tribunal to conduct detailed analysis on the merits of certain issues very early in the arbitration process (to determine relevant acts or omissions, attribution, consequences, etc).[35] Short of very clear facts, arbitrators should be careful not to predetermine the case.

Another conundrum arises if the tribunal determines that the Respondent’s act/omission contributed to the Claimant’s poor financial position, but did not exclusively or even predominantly cause it.[36] In such circumstances, it is suggested that the tribunal may exercise its discretion in the quantum of security to be granted, by calibrating the quantum of security in proportion to the Respondent’s blameworthiness. The greater the Respondent’s contribution to the Claimant’s impecuniosity, the smaller the amount of security it should deserve to benefit from (or deserve no security at all).

Advances on costs

Arbitrators should take into account the amount of advance on costs already provided by the parties, which offers a certain degree of guarantee against extravagant or frivolous claims.[37] Furthermore, most institutional rules specifically provide for advances to be made by the parties in equal shares.[38] For example, the tribunal in ICC Arbitration 7137/1993 considered that the subject of arbitration costs was specifically provided for in the ICC Rules Article 9 (Article 30 of the 1998 rules). The tribunal held that it was not for the arbitrators to envision other conservatory measures with respect to the same subject.

While some tribunals and commentators, particularly in the context of the ICC, argue that the existence of advances on costs by both parties warrants a restrictive approach towards granting of security for costs,[39] it is submitted that it is merely a factor that arbitrators should take into account rather than a justification for a general restrictive approach. This is because the amount of advance varies with different arbitral institutions. More importantly, advances only secure the charges of the institution and the fees of the tribunal, not the costs of the parties,[40] and this may be insufficient in certain cases.

Therefore, it is argued that arbitrators should approach each factual scenario without any particular leanings to determine if security is required in that case. If security is so required, they should then take into account the quantum of advances already put forward by the Claimant to ascertain if it is sufficient. [41]

Prima facie strength of the claim and defence

If the claim has reasonably good prospects of success, this is a factor against an order for security. Conversely, if the defence has a reasonably good prospect of success, then this should be a factor in favour of security. Should both parties have good arguable cases, this factor would not be helpful in determining whether security is appropriate. [42]

However, arbitrators must be careful not to prejudge or predetermine the merits of the case at this preliminary stage when the parties have not fully presented their cases.[43] A prima facie weak case on the Claimant’s part, together with the surrounding circumstances, may also add to an inference that the Claimant is bringing a claim in bad faith and accordingly justify an order for security.

Conduct of the Respondent (unclean hands)

It is suggested that the conduct of a Respondent is a relevant factor to be considered by tribunals in the request for security for costs. For example, if a Respondent has defaulted in the payment of its portion of the advance on costs required by the tribunal, its application for security might be deemed to have been brought with “unclean hands”.[44] In ICC Case No. 13620, the tribunal held that the failure of the Respondent to abide by the ICC rules, although not automatically disqualifying him from seeking interim relief, did create a substantial obstacle to the success of his application.[45]

Arbitrators should also consider whether an application is being used unfairly or oppressively to intimidate a weaker party, to delay the time when the applicant has to address the substance of the dispute, or to unjustly prevent a party from pursuing a legitimate and genuine claim.[46]

Timing of application

The timing of the application for security for costs may affect the fairness of an order. A late application can unfairly disadvantage the Claimant because of the short time available to make arrangements to comply with an order for security.[47] However, a tribunal may also consider whether the Respondent has good reasons for its delay.[48]

Applications for security where the Respondent has a counterclaim

Where the Respondent applying for security is simultaneously pursuing a counterclaim, the better approach is for security to be ordered specifically in respect of the costs of defending the original claim. This is because the purpose of security for costs is the protection of the party defending a claim and not for pursuing a counterclaim.[49] If however the counterclaim raises a matter that is inseparable or closely connected with the original claim, it may be inappropriate to order full security against the Claimant.[50]

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III.  CONCLUSION

At the end of the day, the power to order security for costs, although widely available to tribunals, is rarely exercised. As Henderson observes, one reason is that tribunals may be made up of arbitrators and lawyers who are from jurisdictions where the concept of cost-shifting is alien:[51]

“The more restrictive approach to security for costs which is seen in international arbitration may reflect the background and personal preferences of international writers and arbitrators form jurisdictions where such orders are rare or unknown: the perception of security for costs as idiosyncratically English, fear of stifling legitimate claims, aversion to legalistic formalities in arbitration, cost and speed concerns, confidence that the NY convention assures proper enforcement of awards, and simple unfamiliarity with the procedure. However as cost-shifting (loser pays) is increasingly seen as a norm in international commercial arbitration, one might expect to see that security for costs will gain recognition as a legitimate consideration in appropriate cases.” – Alastair Henderson, “Security for Costs in Arbitration in Singapore” (2011) 7 AIAJ 54[52]

It has been suggested in this article that the resistance of some arbitrators towards security for costs is unfounded. It carries the potential in prejudicing Respondents as costs-shifting becomes a norm in international arbitration. There is no principled basis for a prima-facie restrictive or liberal approach to ordering security for costs. [53]

Depending on the specific circumstances of each case, the tribunal’s task is to strike an appropriate balance between not obstructing the Claimant’s access to justice on one hand, and risking the Respondent’s prospect of enforcing a potential costs award on the other. Furthermore, a tribunal’s decision is not confined to the two extremes of granting or refusing that request. The tribunal has the discretion to determine the quantum of security. The tribunal should therefore make its assessment specific to the facts of each individual case, taking into consideration the totality of relevant factors. There should not be any prima facie presumption in favour of or against an order for security.

It is hoped that the above analysis will serve as a guide to improve consistency in this area across the general arbitration landscape. In particular, the views in this article aims to advocate for a balanced approach regardless of if the parties or tribunal members may hold different view with respect to costs-shifting.

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This article may be cited as follows: Alvin Tan and Gillian Seetoh, “Security for Costs in International Arbitration” International Arbitration Asia (9 October 2017) <www.internationlarbitrationasia.com/articles/security_for_costs_in_IA/>.