BDMS Ltd v Rafael Advanced Defence Systems [2014] EWHC 451 (Comm), [2014] All ER (D) 244 (Feb)
The requirement that an advance on cost be paid, under Art 30(3) of the International Chamber of Commerce Rules, gave rise to a contractual obligation owed to the other party. A majority of the authorities favoured the contractual approach. As a matter of English law, that approach was consistent with the contractual agreement to arbitrate under the rules and the mandatory terms in which Art 30(3) of the rules was expressed. For a breach to be repudiatory, it had to be shown that the party in breach: (i) had clearly and unequivocally evinced an intention not to perform its obligations under the arbitration agreement in some essential respect; and (ii) had committed a breach of the arbitration agreement which went to the root of the contract. It was settled law that a refusal or failure to pay advance costs might, in an appropriate case, be repudiatory. It had to be proved that the arbitration agreement was repudiated, not merely the arbitration
