Cost Submissions - Additional Facility Arbitration (2022 Rules)
ICSID requests advance payments from the parties at various stages of the proceeding to defray the fees and expenses of the Tribunal and ICSID. As a general rule, the parties are usually responsible for these payments (see Cost of Proceedings). Each party is also responsible for its own costs (e.g., the cost of its legal representation).
The Tribunal has broad discretion to allocate costs between the parties in the final Award (Additional Facility Arbitration Rule 62(1)). The decision on costs will be memorialized in the Award and become binding on the parties (Additional Facility Arbitration Rule 70(4)). The Tribunal may also issue interim decisions on costs at any stage of the proceeding (Additional Facility Arbitration Rule 62(3)) and they will form part of the Award (Additional Facility Arbitration Rule 62(4)).
The Tribunal can allocate the costs with regard to a particular part of the proceeding, with regard to particular claims or defenses, or as a whole. When making its decision on costs, the Tribunal will consider all circumstances of the case, including the following factors:
- the outcome of the proceeding or any part of it
- the conduct of the parties during the proceeding
- the complexity of the issues
- the reasonableness of the costs claimed (Additional Facility Arbitration Rule 62(1)).
The Tribunal will request statements of and submissions on costs from the parties before making its decision on costs (Additional Facility Arbitration Rule 61). A statement of costs lists all costs incurred by a party in connection with the proceeding, including the costs of its legal representation (Additional Facility Arbitration Rule 60). The submission on costs contains a party’s arguments on the allocation of costs, bearing in mind the factors in Additional Facility Arbitration Rule 62(1).
If the Tribunal renders an Award that the claim manifestly lacks legal merit (Additional Facility Arbitration Rule 51), it will award the prevailing party its reasonable costs, unless there are special circumstances justifying a different allocation of costs (Additional Facility Arbitration Rule 62(2)). As a result, a submission on costs in this circumstance would also address any special circumstances that could affect the allocation of costs.