It happens in arbitration that the respondent refuses to pay its share of the advance on costs, be it to obstruct the proceedings, to force the claimant to finance the arbitration alone, or for other reasons. In this context, the question arises whether the claimant, who substituted the respondent's share of the advance on costs, has any remedies to claim immediate reimbursement for the substituted payment.
This article will demonstrate that the respondent has a contractual obligation under the arbitration agreement to pay the required advance on costs. If the respondent fails to do so without having justified reasons, it is in breach of its contractual obligation towards the claimant, who is forced to pay the entire advance on costs to allow the proceedings go forward.
Since disputes regarding the non-payment of the advance on costs fall within the scope of the arbitration agreement, the arbitral tribunal has the power to render a decision on the immediate reimbursement of the substituted advance on costs. This article submits that for enforcement purposes, the arbitral tribunal's decision on the reimbursement should be rendered in the form of a partial award.
Finally, this article also provides a list of various arbitral awards dealing with this topic.ASA Bulletin