|Opis:||There has been a significant shift in the last decades towards the recognition of arbitral tribunals' power to order security for costs in international commercial arbitration. Historically, the power to grant interim measures was reserved exclusively for state courts, whereas nowadays, such power is given to the tribunal in most of the national jurisdictions and arbitration rules. The power of the arbitral tribunal can be derived either from the parties' agreement - and consequently, from the institutional arbitration rules - or the law of the seat of arbitration – lex arbitri. Although empowering tribunals to order interim measures is in many aspects beneficial to the efficiency and the purpose of arbitration, it nevertheless poses a new problem, one of concurrent jurisdiction of tribunals and courts. In practice, there are two possible approaches to solving this issue. The first one is the so-called “free choice approach”, where a full parallel jurisdiction is given to both forums. The second approach adopts the subsidiarity of judicial intervention, giving priority to tribunals, unless the tribunal has not been constituted yet or other appropriate circumstances exist. The parties to arbitration, in accordance with the principle of party autonomy, also have an option to depart from these two principles, and conclude an exclusion agreement, by which they give exclusive jurisdiction to either the tribunal or the court.
Once the jurisdiction of the arbitral tribunal to order security for costs has been established, a new problem presents itself. That is, the lack of a uniform test for such a measure, which would set clear and specific criteria. Whereas many national laws and arbitration rules empower tribunals to order interim measures, almost none of them offer any specific guidance as to the circumstances under which such measures should be granted. The UNCITRAL Model Law, with its amendments from 2006, sets forth two general conditions, none of which are particularly suitable for a measure as specific as security for costs.
Therefore, international arbitration practice must be observed. Due to the complex array of various legal systems, it is hard, if not impossible, to form one set of criteria, which could be applicable to all of those systems. Nevertheless, there are some circumstances, which arbitral tribunals seem to observe on a regular basis when deciding on requests for security for costs. Such circumstances include the financial situation of the claimant (and respondent’s role in its situation) and the timing of the application for security for costs. The nationality or the domicile of a party is a criterion, the use of which is specifically prohibited by many legal documents as it would go against the core principle of international commercial arbitration.|