Cost Submissions - ICSID Convention 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 administrative charges. As a general rule, the parties are equally responsible for these payments (with the exception of annulment proceedings, 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 (Article 61(2) of the Convention). It may also issue interim decisions on costs at any stage of the proceeding. The decisions on costs will be memorialized in the Award and become binding and enforceable (Articles 53 and 54 of the ICSID Convention, Arbitration Rule 52(3) and (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
- the complexity of the issues
- the reasonableness of the costs claimed (Arbitration Rule 52(1)).
The Tribunal will request statements of costs and submissions on costs from the parties before making its decision on costs (Arbitration Rule 51). A statement of costs lists all costs incurred by a party in connection with the proceeding, including the costs of its legal representation (Arbitration Rule 50). The submission on costs contains a party’s arguments on the allocation of costs, bearing in mind the factors in Arbitration Rule 52(1).
If the Tribunal renders an Award that the claim manifestly lacks legal merit (see Arbitration Rule 41), it will award the prevailing party its reasonable costs, unless there are special circumstances justifying a different allocation of costs (Arbitration Rule 52(2)). As a result, a submission on costs in this circumstance would also address any special circumstances that could affect the allocation of costs.