Costs of arbitration / Article 20 of the ICC Rules / Apportionment of costs in consideration of the two phases of the arbitration: before and after the preliminary award / In the second phase, the unjustified resistance by the largely succeeding party alleviates the burden of other party's responsibility for the costs

'According to the Terms of Reference, the Arbitral Tribunal is lastly to fix "the costs of arbitration or in what proportion said costs shall be borne by the parties". This is in accordance with Article 20 of the Rules of Conciliation and Arbitration of the ICC International Court of Arbitration which makes it clear that the Award must also "decide which of the parties shall bear the costs or in what proportions the costs shall be borne by the parties". In addition to these costs, the Tribunal also has to fix the legal costs incurred by each party for its defence. It is obvious that the costs must be considered with respect to the two phases of the arbitration, that is before and after the Preliminary Award (...)

Before and until the Preliminary Award, the costs have to be entirely borne by Defendant, in accordance with the outcome of the proceedings, as decided in that award, which sanctioned the unfounded and time consuming objections raised by Defendant. Arbitration costs amount at this stage to US$ 50,000. Accordingly, Defendant must pay Claimant US$ 25,000 as a reimbursement for the advance paid by Claimant to the ICC International Court of Arbitration. In addition to this amount, Defendant must also pay a contribution to Claimant's legal fees and expenses. Pursuant to Claimant's statement, Claimant has incurred US$ 39,962 in costs and US$ 30,000 in legal fees. The Tribunal finds it fair to round this sum up to US$ 65,000 so that Claimant will receive from Defendant US$ 90,000 for its global costs until the Preliminary Award.

The costs incurred after the Preliminary Award must be apportioned differently. Following the arithmetical evaluation of the outcome, Claimant has only succeeded in its claim to an extent of approximately 1/6 and failed accordingly to an extent of 5/6. (...) This arithmetical outcome, however, cannot be followed to assess Claimant's responsibility for the costs. Indeed, the difficulty of the proceedings consisted mainly in establishing the principle of Defendant's liability, not so much in assessing the damage. If Defendant was right to resist the amount claimed, it was wrong to deny any liability. By doing so, Defendant extended considerably the time and difficulty of the proceedings. This unjustified resistance must be taken into account to alleviate the burden of Claimant's responsibility for the costs incurred by each party. Accordingly, the Tribunal finds that both parties will bear their own costs. The remaining arbitration costs of US$ 80,000 will be borne in an equal proportion by both parties. The Secretariat of the ICC International Court of Arbitration will proceed to no reimbursement.'