ReSolution Issue 13, May 2017 | Page 40

Arbitration Rules) but it is recognised and accepted that they fall within the ambit of the general power awarded to tribunals to order conservatory or interim measures. Similarly, on the investment arbitration front, Article 47 of the International Centre for Settlement of Investment Disputes (ICSID) Convention and Rule 39 of the ICSID Arbitration Rules, which grant tribunals the power to order provisional measures, have been used by a party seeking security for costs.

Given their wide availability in the commonly used arbitration rules, you might assume that these measures would often be applied for by parties in arbitration proceedings. Yet this is not the case. Applications for either measure are seldom made and many in the arbitral community consider them difficult to obtain. A 2014 ICC publication looking at decisions concerning security for costs in ICC arbitrations noted that of the 9 or 10 applicationsi surveyed, only three were successful. Where granted, they were granted only in part and subject to conditions.

Yet this picture is not mirrored in our own more recent experience. While security for costs or claim applications have arisen in only a small percentage of our global caseload, we have seen more positive outcomes, with some 50% of applications being granted. Furthermore, the arbitrators have been receptive to the idea of granting relief in the particular circumstances in play in each of those cases.