No. Most institutional arbitration rules provide that the arbitral award shall be notified to the parties only after full payment of the arbitration costs (including the arbitrators' fees). This is the case, for example, of the ICC Rules (Article 34.1), the CEPANI Rules (Belgian Center) (Article 31.2), the CMAP Rules (Center of Mediation and Arbitration of Paris)(Article 27.1) and the OHADA Rules (Article 25.1). Arbitral institutions may therefore rely on these clauses for you to settle the costs still due.

The rules of the Hong Kong International Arbitration Centre (HKIAC) are even more explicit and state in Schedule 2, Article 7 that "HKIAC and the arbitral tribunal shall have a lien over any awards issued by the tribunal to secure the payment of their outstanding fees and expenses, and may accordingly refuse to release any such awards to the parties until all such fees and expenses have been paid in full, whether jointly or by one or other of the parties."

Things apparently did not unfold this way at the end of an OHADA arbitration. Although the arbitrators’ fees had not been paid in full, the award was communicated to the parties. The arbitrators subsequently sued the parties and were successful in a judgment handed down by the French Supreme Court (Cour de Cassation) on 1 February 2017. The Court underlined that the parties’ obligation to pay the arbitrators’ costs and fees was of a joint and several nature. Hence, the successful party was obliged to settle not only its arbitration costs but also those of the unsuccessful party who refused to do so.

Judgment cited: French Supreme Court (Cour de Cassation), Chamber 1, Judgment no. 145 of 1 February 2017, Pourvoi no. 15-25.687