197 / 521
separate advances if the parties seem to have requested it for purely
tactical reasons
6
.
As the separate advances on costs are subject to higher margins
when considered separately, the parties pay higher advances. However,
it should be noted that this does not mean that the arbitral tribunal and
the ICC would be paid more at the end of the arbitration. The Court
shall calculate the arbitral tribunal’s fees and the ICC administrative
expenses considering the global amount of the claims
7
.
Conclusion
The separate advances on costs can be advantageous for the parties
where one of the parties abstains from the payment, even though it has
claims or counterclaims. The sanction of withdrawal pursuant to
Article 36(6) is applied only to claims whose advances on costs have
not been paid by the relevant party. This definitely incentivizes the par-
ties to pay the advances on costs concerning their own claims or coun-
terclaims.
On the other hand, it should be considered that the Court does not
fix separate advances without a request from the parties. Also, it should
be emphasized that the Court is reluctant to fix separate advances on
costs pursuant to Article 36(3) of the Rules.
ARBITRATION LAW
181
6
Secretariat’s Guide, p. 376.
7
Secretariat’s Guide, p. 375-376.