Allocation of costs in commercial and investment arbitration under different rules of procedure

Andreea Simulescu
Andreea Simulescu
Marius Grigorescu
Marius Grigorescu

Parties to arbitration proceedings seldom attach to the issue of the allocation of arbitral costs comparable weight as they attach to other aspects of the proceedings. Yet there are situations where either unanticipated costs are revealed only at the stage of the submissions on costs, as well as situations where the amount of costs is close to the amount in dispute.

Situations of this sort warrant a closer examination of the issue of the allocation of arbitral costs, starting with:

• the identification of the categories of costs,

• which party pays the advance on what, and

• how these costs are allocated between parties by the award.

The aim of this analysis – which does not seek to exhaust this complex subject – is to review how the costs of arbitration are allocated between parties and how counsel can advise the client to take a cautionary approach to the issue.

For the purpose of this article, reference is made to the:

• International Chamber of Commerce Rules of Arbitration – version in force as of 1 January 2021 (the “ICC Rules”),

• The Court of Commercial International Arbitration attached to the attached to the Chamber of Commerce and Industry of Romania Rules of Arbitration – version in force as of 1 January 2018 (the “CICA Rules”),

• United Nations Commission on International Trade Law Rules UNCITRAL Arbitration Rules as of 2021 (the “UNCITRAL Rules”), version which incorporates UNCITRAL Rules on Transparency for Treaty-based Investor-State Arbitrationand the UNCITRAL Expedited Arbitration Rules,

• The International Centre for the Settlement of Investment Disputes Rules – version in force as of 1 July 2022 (the “ICSID Institution Rules” and/or “ICSID Arbitration Rules”), and

• The Romanian Code of Civil Procedure for ad-hoc arbitration (international and domestic) (the “Romanian Code of Civil Procedure”).

The identification of categories of costs

The types/categories of arbitration costs are usually identified in the rules of arbitration, as follows:

Art. 38 – Decision as of to the Costs of the Arbitration, paragraph (1) of the ICC Rules[1]:

“The costs of the arbitration shall include the fees and expenses of the arbitrators and the ICC administrative expenses fixed by the Court, in accordance with the scale in force at the time of the commencement of the arbitration, as well as the fees and expenses of any experts appointed by the arbitral tribunal and the reasonable legal and other costs incurred by the parties for the arbitration.”

Art. 50 – Costs of the Arbitration paragraph (1) of the CICA Rules[2]:

“The costs of the arbitration include the registration fee, the arbitration fee, which consists of the administrative fee and the fee of the arbitrators, the costs for the administering of evidence, the costs for the translation of documents and of oral arguments, the lawyers’ fees, the experts and advisors fees, the travel costs for the parties, arbitrators, witnesses, experts and legal counsel and other costs related to the arbitration.”

Art. 40 – Definition of Costs, paragraph (2) of the UNCITRAL Rules[3]:

“The term “costs” includes only: (a) The fees of the arbitral tribunal to be stated separately as to each arbitrator and to be fixed by the tribunal itself in accordance with article 41; (b) The reasonable travel and other expenses incurred by the arbitrators; (c) The reasonable costs of expert advice and of other assistance required by the arbitral tribunal; (d) The reasonable travel and other expenses of witnesses to the extent such expenses are approved by the arbitral tribunal; (e) The legal and other costs incurred by the parties in relation to the arbitration to the extent that the arbitral tribunal determines that the amount of such costs is reasonable; (f) Any fees and expenses of the appointing authority as well as the fees and expenses of the Secretary-General of the PCA. “

Rule 50 – Costs of the Proceeding of ICSID Rules of Arbitration[4]:

The costs of the proceeding are all costs incurred by the parties in connection with the proceeding, including: (a) the legal fees and expenses of the parties; (b) the fees and expenses of the Tribunal, Tribunal assistants approved by the parties and Tribunal-appointed experts; and (c) the administrative charges and direct costs of the Centre.

They may also be regulated in the national legislation as it is in the Romanian Code of Civil Procedure:

Art. 595 – The Arbitral costs, paragraph (1) of the Romanian Code of Civil Procedure:

„The costs for the organization and holding the arbitral proceedings, such as the arbitrators’ fees, costs for the administration of evidence, costs for travelling of the parties, arbitrators, experts, witnesses […].

Such costs are fees and expenses of the arbitrators, administrative expenses, legal and other costs incurred by the parties in arbitration (with experts’ fees and expenses, with witnesses’ expenses, translations, etc).

They are, together, the costs of arbitration.

When it comes to the allocation of such costs, international doctrine[5] distinguishes between two categories of costs:

• Arbitration costs – category which includes arbitrators’ fees and expenses, case administration by the institution, organizing and holding the arbitral proceedings, and

• Parties’ costs – a second category which includes legal costs, meaning lawyers’ fees and expenses and all other costs paid directly by the interested party for the preparation and the presentation of the case (experts’ evidence, visual technician services, witnesses’ travelling costs, etc).

The distinction presents relevance at the time of deciding on the allocation on costs in the award. For example, an arbitral tribunal may decide that each party shall pay its own costs but it will still need to determine which party has to bear the arbitration costs. In other cases, the arbitral tribunal may also have proper ground to reallocate the parties’ costs.

Who pays what?

One should take into consideration first the principle of party autonomy, which governs the entire arbitral proceedings, then one should look into the arbitral rules which govern the proceedings and, in the absence of such rules, to the law provisions applicable at the place of arbitration, if any, which shall be complied by the tribunal’s decision.

Principle of party autonomy

In the presence of an agreement of costs, the arbitral tribunal must give effect and decide based on the consent of the parties with respect to the payment (and/or allocation on costs). However, such agreement is not common in practice, parties usually prefer to comply with the rules of arbitration or grant to the tribunal the discretion for deciding on the payment or simply, they do not take into consideration the closing of a such agreement.

The Arbitration Rules

Usually, the arbitration rules provide the allocation on the payment of the advance on costs (first category discussed – for the arbitration costs which includes both fees and expenses). As opposed to the ICC Rules[6], UNCITRAL Rules[7] and Romanian law provisions[8], which all provides for a payment of the advance on costs in equal shares by the parties to the arbitration, CICA Rules[9] provide that each of the parties shall pay the arbitration fees corresponding to their claims[10], as in front of the national courts and ICSID Rules of Arbitration[11] leave the division of the advance on costs at the parties’ discretion.

In case that the party/parties does/do not pay the advance on costs, the same rules further provide what happens in each situation, namely either the other party shall be obliged to pay or the arbitral tribunal may order the suspension/termination of the arbitral proceedings.

In case of domestic ad-hoc arbitration, the Romanian legislator provides[12] that any order of the arbitral tribunal concerning the determination and the payment of the advance payment can be challenged in the court of law. In such a case, the court shall make a final and binding decision on the amount of the arbitral costs as well as on the modalities of the registration, advance or payment.

Allocation of Costs in the Award

• the principle of party autonomy

A starting point for deciding on the allocation of costs is party’s agreement. As mentioned before, this is not common in practice. Few examples of such agreements are found in the ICC Commission Report on Decision on Costs[13], based on the awards studied:

• the parties agreed in their submission on costs that the general principle of ‘costs follow the event’ should be applied, or – this is however a general rule which is followed by the arbitral tribunals in commercial arbitration and in investment arbitration (at least, under UNCITRAL and ICSID Rules[14]) as well,

• ‘the prevailing party shall be entitled to recover its reasonable attorneys’ fees, costs and other expenses’. The tribunal considered this clause to be mandatory and that its ‘determination is essentially limited to whether any of [X]’s claimed costs is not reasonable, or

• the contracting parties shall each bear their respective expenses and fees. In the event the arbitrator renders an award for only one party, the costs of the arbitration shall be borne by the other party. We can notice here how the distinction between the two categories of costs operates in a party agreement.

The Arbitration Rules

In the absence of a parties’ agreement, the applicable rules of arbitration are the starting point in deciding how the costs are allocated between parties. For instance:

a. the ICC Rules authorize the tribunal to make an award apportioning costs but do not contain any presumption on their allocation. The Rules refer expressly to the Tribunal’s discretion to take into account parties’ conduct, including whether they conducted the arbitration in an expeditious and cost-effective manner. Same do CICA and ICSID Rules, presented below:

Art. 38 Decision as to the Costs of the Arbitration, paragraphs (4) & (5) of the ICC Rules:

4) The final award shall fix the costs of the arbitration and decide which of the parties shall bear them or in what proportion they shall be borne by the parties.

5) In making decisions as to costs, the arbitral tribunal may take into account such circumstances as it considers relevant, including the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner.

Art. 51 Costs of the Arbitration of the CICA Rules:

Unless otherwise established by the parties, the arbitral tribunal, upon request by a party, shall order in the award the payment by one of the parties of any reasonable costs incurred by the other party, including the costs related to representation before the arbitral tribunal, taking into consideration the result of arbitration, the manner in which each party contributed to ensuring the efficiency and expeditiousness of the proceedings and any other relevant circumstances.

Rule 52 Decisions on Costs paragraph (1) of the ICSID Rules:

(1) In allocating the costs of the proceeding, the Tribunal shall consider all relevant circumstances, including: (a) the outcome of the proceeding or any part of it; (b) the conduct of the parties during the proceeding, including the extent to which they acted in an expeditious and cost effective manner and complied with these Rules and the orders and decisions of the Tribunal; (c) the complexity of the issues; and (d) the reasonableness of the costs claimed. (2) If the Tribunal renders an Award pursuant to Rule 41(3), it shall award the prevailing party its reasonable costs, unless the Tribunal determines that there are special circumstances justifying a different allocation of costs.

b. UNCITRAL Rules contain the presumption that the successful party would be entitled to recover its reasonable costs:

Art. 42 (1) of the UNCITRAL Rules:

The costs of the arbitration shall in principle be borne by the unsuccessful party or parties. However, the arbitral tribunal may apportion each of such costs between the parties if it determines that apportionment is reasonable, taking into account the circumstances of the case.

c. On the other hand, Romanian legislator provided the allocation of arbitration costs same as it is provided for the litigation costs in front of the national courts of law, lacking any mention about the reasonable costs, the way the arbitration was conducted or any other circumstance:

Art. 595 of the Romanian Code of Civil Procedure:

„In the absence of parties’ agreement, the arbitral costs shall be paid by the losing party, in their entirety if the request for arbitration is fully admitted or proportionally with what was granted of the request is partially admitted.”

Allocation of costs in commercial arbitration

Same study of the ICC Commission[15] found that many arbitral tribunals considered whether the parties had entered into a contractual agreement over the allocation of costs. In the absence of such agreement, the arbitral tribunals incline either to (i) allocate all or part of the costs to the successful party, or (ii) apportion costs equally between the parties.

Some factors most commonly taken into account by tribunals in exercising their discretion in apportioning costs, these factors could be, as they were reflected by the ICC Report[16] and also found in the authors’ practice in international investment and commercial arbitration:

Could the arbitration have been avoided?

The situation where, for example, the parties held an apparent settlement discussion prior to initiating arbitration, creating thus an apparent good-faith while, during the arbitration proceedings, it is proved that they never intended to settle the dispute amicably. In such cases, even if the claimant lost on most or all of its claims, the tribunals may order, based on their discretion, that the costs of arbitration be divided equally between the parties, or at least differently from the division of liability.

Parties’ costs incurred in different stages of the proceedings

Tribunals may consider whether, and at what stage of the proceedings, costs on preliminary issues such as objections to jurisdiction, interim measures and /or other parties’ procedural objections are recoverable. The party in whose favour preliminary issues are decided may be different from the party that wins on the merits. This criterion is applicable as per the principle above mentioned cost follow the event. Usually, the allocation of such costs is either requested by the parties or reserved by the tribunals by the final award rather than by partial award.

Procedural behaviour of the parties

Tribunals may also consider, as per their discretion, the procedural behaviour of the parties during the entire arbitral proceedings, including here the conduct of the arbitration in a efficient and cost-effective manner. Procedural behaviour that could determine a different allocation on costs include (i) any behaviour leading to unnecessary delays of the arbitral proceedings, such as, for example: (i) recalcitrant behaviour; (ii) failure to pay advance on costs; (iii) unjustified refusal to participate in drafting procedural documents; (iv) failure to reply to document production requests; (v) failure to appear at the hearing in person; (vi) abandoning of claims very late in the proceedings; (vii) failure to comply with time limits; (ii) party’s bad faith in conducting the case, such as, for example (viii) disregard of standard procedural rules; (iv) lack of professional courtesy – submitting for example several request of challenge the arbitrator having the same reasons; (vi) withholding of evidence needed by another party; (vii) hiding of the factual and legal situation – for example, where the party submits to the case a cherry picked version of one video or document, avoiding thus to present the entire truth and to mislead the tribunal;

Reasonableness of the costs incurred

In the absence of parties’ agreement as to the submission of the proving documents for the cost incurred in the arbitration, the tribunals have to assess if the fees were substantiated, well documented and supported by evidence. If the costs are not substantiated, the tribunal may dismiss such costs.

The relevance of the parties’ legal fees and expenses

Legal fees claimed have to be relevant (to advance/to support he party’s case, to be useful, pertinent), and related to the presentation of the case. Tribunals may dismiss claims for instance, related to the legal fees related to the negotiations in view of the settlement of the case during the arbitral proceedings.

Disparities between the costs

In the situation when one of the party’s costs are much higher than the other party’s costs, the tribunal still has to determine if the costs are reasonable, recoverable and relevant to the case irrespective of the discrepancy. For example, in one ICC Award, the Tribunal held that both amounts were reasonable, that the disparity reflected the parties’ differing strategies, and that there was no reason why one should be penalized for the more costly strategy of the other[17].

Recoverability of different types of costs

For example, success fees, in house counsel, experts’ reports – the tribunal has discretion in considering whether these costs are reasonable, necessary for the parties’ case. There were situations when the tribunal decided not to give any weight to the expert evidence and for this reason dismissed the claim for the reimbursement of the costs related thereto.

Allocation of costs in investment arbitration

The cost of the investment arbitrations for the involved parties is always a matter of great concern, and one of the criticisms that is faced by the investment dispute resolution mechanisms is the high costs involved and the insufficient amount the winning party can recover of these costs.

As the costs incurred by the parties in the investment arbitrations are scrutinised over the years, one can conclude that the costs for the claimant is always higher than the cost incurred by the defendant (state). A study conducted in 2016 which analysed the ICSID awards issued between 2011-2015 concluded that the average cost for the claimant was USD 5,619,261.74 and the average cost for respondent was 4,954,461.27 while the average ICSID tribunal costs were USD 882,668.19.

A similar study from 2017 concluded that in ICSID arbitrations the average cost for the claimant was USD 6,019,000, for respondent USD4,855,000 and the average tribunal costs were USD 933,000 and average UNCITRAL arbitrations higher at USD 1,089,000.

It is apparent that the highest component of the costs incurred in investment arbitrations represents the party costs while the costs incurred by the claimant is usually higher than those incurred by the defending state.

This discrepancy in the costs incurred by the claimant and the defendant does not translate into a disparity when it comes to the principle of equality of the parties, as the differences between the amounts reportedly spent by the defending states and those spent by the claimants can be explained by the scrutiny which the states place on their spending, which means that the states will most often place a greater deal of effort into finding the best cost effective defence scenario, including acquiring counsel pursuant a public procurement procedure that balances the required skills with the most favourable cost scheme which counsel can offer.

Sometimes, the governments accept or even favour a success fee proposal from their counsel, and as such they defer payment for a portion of the costs to the end of the arbitral proceeding and link it to the success of the defence put up by counsel. Traditionally, the success fee is a cost that evades the scrutiny of the arbitral tribunals, as it depends on the solution itself that the arbitral tribunal renders. As such, usually parties pay the success fee after the award is made known by the tribunals and it cannot be included in the declaration of costs.

This trend may change as a recent ICSID award issued on May 18 2022 in BSG Resources Limited (in Administration), BSG Resources (Guinea) Limited, BSG Resources (Guinea) Sàrl v Republic of Guinea (ICSID case no. ARB14/22) ruled in favour of Guinea and the tribunal considered as recoverable Guinea’s success fees under a private fee arrangement with counsel.

In order to issue this ruling, the tribunal analysed the wording of Rule 52(2) of the amended ICSID Arbitration Rules and found out that the success fee falls under the category of ‘costs reasonably incurred’.

In order to deal with the high costs of the investment arbitration, parties often recur to third party funding (“TPF”) as an important means of facilitating access to arbitration in cases that might not otherwise be financially feasible. Usually, TPF consists of a contractual pledge issued by a (third) party which is not involved in the arbitration to sustain or to contribute to the costs of one of the parties in exchange of a financial settlement at the end of the procedure which can depend or not on the outcome of the arbitration.

In UNCITRAL investment arbitrations certain concerns were identified with regards to TPF, notably conflicts of interest arising out of third-party funding, disclosure of information to third-party funders not subject to confidentiality obligations, control or influence of third-party funders over the arbitration process, negative impact on amicable resolution of disputes and the availability of third-party funding mainly for investors. However, the international arbitration and notably the investment arbitration does not oppose TPF, as it has become a useful tool in dealing with the high costs of the proceedings.

Because the third-party funder is not involved in the arbitration, the arbitral tribunal cannot award it the corresponding costs nor can it be compelled to indemnify the winning party when the party it funded has lost the arbitration. One exception can be found in the commercial arbitration, where an ICC tribunal has found that the amount due to the third-party funder qualifies as other costs of proceedings and awarded it to the funded party.

Returning to the cost recoverability, one should note that a disparity exists between the parties but in favour of the claimant. Even if the defending state in an investment arbitration spends in theory less for its defence, time and again it finds difficult to recover such costs against the losing claimant, which most of the time is a company or a group of companies hiding behind the corporate veil or which can place its business under insolvency protection. On the other hand, the respondent-state is, in theory, always solvable and as such the prevailing claimant can recover its costs in a reasonable amount of time.

Security for Costs in investment arbitration

This disparity in cost recoverability was often raised by the states involved in investment arbitration, as there were a significant number of cases in which the states have prevailed but found themselves unable to recover the costs of the arbitration against the losing investor.

In order to mitigate this issue, some states requested a Security for Costs („SfC”) in various investment arbitration proceedings, i.e. that the claimant should issue a security at the beginning of the arbitral proceedings which can be used by the state in order to collect the costs that would be awarded by the tribunal’s award.

The investment arbitration tribunals were initially reluctant to grant application for SfC, as the ICSID arbitration rules in force until 2022 did not provide for this possibility and the UNCITRAL rules still do not. Until the new ICSID arbitration rules entered into force, there were only two cases in which the SfC application was granted, RSM Production Corporation v Saint Lucia, under the ICSID Convention, and Garcia Armas et al v Venezuela, under the 1976 UNCITRAL Rules and ICSID Additional Facility Rules.

Under previous ICSID arbitration rules, the lack of procedural norms on SfC can sometimes alleviated by the provisions of the bilateral investment agreements that set forth the possibility to require SfC in an investment arbitration taking place based on their provisions. Such is the case with bilateral investment treaty between Iran and Slovakia that provides for the possibility that the arbitral tribunal may order SfC if it considers that there is a reasonable doubt that claimant would be not capable of satisfying a costs award or consider it necessary from other reasons (article 21) and EU-Mexico Free Trade Agreement (yet to be ratified) which allows the discretion of the arbitral tribunal to order SfC against a claimant.

The 2022 ICSID arbitral rules took a step forward and expressly provided for the possibility that SfC is granted. A party defending a claim or a counterclaim can seek security for the estimated costs that it will incur in the proceeding under Arbitration Rule 53.

The new rules grant the Tribunal the authority to order the other party to provide security for costs in certain circumstances at any time during the proceeding. Whether a party requests SfC before the constitution of the Tribunal, the Secretary-General fixes time limits for written submissions on the request so that the Tribunal may consider the request promptly upon its constitution.

In order for the Arbitral Tribunal to rule on the SfC, the interested party must put forward the relevant circumstances and present the evidence that it relies on, as per Arbitration Rule 53(2)(a).

The Tribunal rules on the SfC request after determining the briefing schedule in and must issue its decision within 30 days after the constitution of the Tribunal (if all submissions have been filed prior to constitution) or after the last submission on the request (if that submission is filed after Tribunal constitution).

In settling the request for SfC, the Tribunal must give a specific consideration to:

• a party’s ability and willingness to comply with an adverse decision on costs

• the effect that an order of security for costs may have on that party’s ability to pursue its claim or counterclaim

• the conduct of the parties.

The Tribunal must take into account all evidence concerning the circumstances that require security for costs, including the existence of third-party funding, as per Arbitration Rule 53(4).

If the Tribunal decides to order SfC, it must set the relevant terms in the order and fix a time limit for compliance with the order. Non-compliance with the order may lead to the suspension and discontinuance of the proceeding, under Arbitration Rule 53(5) and (6).

The Tribunal also has the power to modify or revoke an order for SfC on its own initiative or at the request of a party after giving each party an opportunity to present its observations.


Parties should have a cautionary approach both prior to initiation of either a commercial or an investment arbitration (by determining as much as possible the potential costs, their allocation by the rules of arbitration and case law or, maybe depending on the case, by reaching an agreement as to their payment) and during the entire arbitration proceedings, in order not only to save unnecessary costs but also to succeed in their claims for costs against the other party.

[1] Available at
[2] Available at
[3] Available at
[4] Available at
[5] Alan Redfern & Martin Hunter, Law and Practice of International Arbitration., page 407; Julian D.M. Lew, Loukas A. Misteli & Stefan M. Kroll, Comparative International Commercial Arbitration, page 653 (Kluwer Law International, 2003).
[6] Art. 37 of the ICC Rules, available at:
[7] Art. 43 of the UNCITRAL Rules, available at:
[8] Art. 596 of the Romanian Code of Civil Procedure: „Arbitrators’ fees (1) the Arbitral Tribunal may estimate, provisionally, the amount of the arbitrators’ fees and may oblige the parties to equally deposit the amount fixed, in accordance with its instructions.
(2) The parties may be jointly obliged to pay
(3) If the Respondent does not comply with its obligation as per para. 1, in the term fixed by the Arbitral Tribunal, the Claimant shall deposit the entire amount following that the final amount of fees due to the arbitrators and the way the parties shall bear them be determined by the arbitral award.”
Art. 597 (1) of the Romanian Code of Civil Procedure:
“The advance payment of expenses: (1) The arbitral tribunal may oblige the parties or each of them to make an advance payment of whichever expenses are necessary for the administration and holding of the arbitral proceedings.”
[9] Art. 50 (4) of the CICA Rules available at: corroborated with Art. 7 of the Schedule of Arbitral Fees and Expenses available at
[11] Rule 29 – First Session, paragraph (4), letter b) of ICISD Rules, available at:
[12] Article 598 of the Romanian Code of Civil Procedure:
At the request of either of the party, the tribunal provided by Art. 547, shall examine the grounds of the order rendered by the arbitral tribunal and shall fix, by final and binding decision, the quantum of the arbitrators’ fees and other arbitral expenses as well as the modalities of the registration, advance or payment
[13] ICC Commission Report – Decisions on Costs in International Arbitration in ICC Dispute Resolution Bulletin 2015, Issue 2
[14] Under ICSID Convention, in the recent years, there were annulment committees which did not follow the risk allocation in the ICSID Convention to its logical conclusion and order the unsuccessful applicant to bear the full costs of the proceedings. However, this trend has been reversing recently, with more and more committees adopting a “costs follow the event” approach:
The Committee considers that the normal course should be for an applicant for annulment who has been wholly unsuccessful, as CEAC has been, to bear the entire costs of the proceeding, including the fees and expenses of the members of the Committee, unless there are exceptional circumstances which warrant a different allocation of costs. The Committee can see no such exceptional circumstances in the present case. CEAC must, therefore, bear the entire costs of the proceeding.”
(CEAC Holdings Limited v Montenegro, Decision on Annulment, ICSID Case No. ARB/14/08, 1 May 2018)
[15] ICC Commission Report – Decisions on Costs in International Arbitration in ICC Dispute Resolution Bulletin 2015, Issue 2
[16] ICC Commission Report – Decisions on Costs in International Arbitration in ICC Dispute Resolution Bulletin 2015, Issue 2, p. 21 et seqq.
[17] ICC Commission Report – Decisions on Costs in International Arbitration in ICC Dispute Resolution Bulletin 2015, Issue 2, p. 26

Andreea N. Simulescu, FCIArb
Attorney-at-law, Arbitrator
Of Counsel, LDDP

Marius Grigorescu
Partner, LDDP