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cle sets forth that the advance on costs shall be paid in equal shares by
the claimant and the respondent.
On the other hand, there are two exceptions laid down under
Article 36(2). In case there are claims made pursuant to Article 7 or
Article 8 of the Rules, which regulate the joinder of additional parties
and claims between multiple parties, the costs would be allocated in
accordance with Article 36(4) of the Rules.
Article 36(4) aims at the fair distribution of advance payments
between the parties in a multiparty arbitration. It should be noted that
this provision is a new provision adopted with the 2012 modifications
to the Rules. This provision will be applied to cases with more than
two parties, either with the rejoinder of the party in line with Article 7,
or when more than two parties are named in the Request for
Arbitration, as claimants or respondents
3
.
Separate Advances on Costs pursuant to Article 36(3) of the
Rules
Pursuant to Article 36(3) of the Rules, in case there are counter-
claims submitted by the respondent, the Court may fix separate
advances on costs for the claims and the counterclaims. In this case,
each of the parties shall pay the advance on costs corresponding to its
claims, instead of paying its share based upon the global advance on
costs.
This provision may be advantageous when one of the parties refus-
es to take part in the payment of the advance on costs that has been cal-
culated including the other side’s claims. Particularly, when the
respondent has counterclaims, the amount in the dispute consists of not
only the amount of the claim, but also the amount of the counterclaim.
As is known, where the advance on costs is not paid by one of the
parties, the Secretariat invites the other party to substitute for the non-
paying party. This may have disadvantages where global advances on
costs have been determined, since the respondent who has counter-
claims may abstain from paying the advances.
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3
Secretariat’s Guide, p. 377.