Provisional measures concerning security for costs and security for claim in international commercial arbitration
Provisional measures concerning security for costs and security for claim in international commercial arbitration

Author(s): Sofia Cozac
Subject(s): Law, Constitution, Jurisprudence, International Law, Law on Economics, Commercial Law
Published by: Societatea de Stiinte Juridice si Administrative
Keywords: provisional measures; security for costs in arbitration; security for claim; denial of justice;
Summary/Abstract: This paper is an analysis from a theoretical and case law perspective of the admissibility conditions for interim measures for security of arbitration costs and for security of claim. These types of interim measures belong to the category of interim measures that are less common in arbitral practice. However, according to recent statistics, applications for interim measures have increased exponentially in recent years. It is therefore important that the rules governing them are well-known by both parties as well as arbitrators, so that they can be correctly used in these situations. The major benefit is that the party requesting such measures will be protected from the possible insolvency of the other party. In other words, a party making unmeritorious claims who is also in a precarious financial situation could be discouraged by such a measure from pursuing possible bad faith claims. However, arbitral tribunals should carefully weigh the granting of such measures in order not to financially block the party initiating arbitral proceedings who may also be in a precarious financial situation due to the damaging actions of the party requesting such measures. Such a measure could amount to a denial of justice in international law, preventing the claimant's access to courts. What is essential in such a claim is for the arbitral tribunals to carry out detailed analysis, by balancing the interests of both parties in an attempt not to block the claimant's access to justice. This is why these types of requests are very rarely admitted, and only for sound reasons, as we will further demonstrate in the upcoming lines.

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