Non-compliance of Security for Costs Orders

Although security for costs has seen a steady rise in recent years, the tools available to tribunals to address the non-compliance of security for costs orders is far less established. The purpose of this article is to shine a light on this theme, which has gained traction in English case law and in the investment arena. That development goes hand in hand with increasing coverage of the issue in institutional rules and national arbitration laws. This article is divided into six sections, first examining the indisputable rise of security for costs in international arbitration (surveyed through available data and academic commentary), then examining the non-compliance of security for costs orders in common law and civil law jurisdictions, in the investment landscape, and coverage in institutional rules. It then moves onto a brief discussion and wrap-ups with some concluding remarks. The hope is that readers will be better informed of the current lay of the land with respect to the non-compliance of security for costs orders, and the tools available to those facing such non-compliance. That includes whether a case can be suspended or terminated for want of non-compliance, and also whether a termination can be made with prejudice to a claimant’s right to bring the same action in the same or separate fora.