Costs of arbitration / Discretionary power of the Arbitral Tribunal in the apportionment of costs / Effect of unjustified inflation of claims resulting in unnecessarily high fees having to be deposited with the ICC / Costs of lawyers' fees where several lawyers' firms have been instructed by a party

'Again we have a considerable discretion, which we propose to exercise in the manner which is usually adopted in relation to an arbitration proceeding in England, which is that the successful party should recover the costs of the arbitration. These costs would ordinarily be (i) the fees paid to the ICC, (ii) lawyers' fees and expenses (not on an indemnity basis but on a reasonable scale). This approach might be varied where, although successful overall, a party was not successful in relation to a particular issue which took a great deal of time. In the instant case quite a lot of time was spent on the "equity participation" issue in relation to which the Claimants were not successful. To a lesser extent, the same could be said of the ... issue (...). But the time spent on these matters did not have a significant effect on the arbitration, and, just as the counterclaim did not discernibly increase the arbitration, we have concluded that we should adopt an overall approach, and award figures which, while reflecting our reservation, produce a simple result.

There is, however, one matter which does trouble us and that is that the amounts claimed by the Claimants were in our view unjustifiably inflated, resulting in unnecessarily high fees having to be deposited with the ICC. This exaggeration has had little effect on the amount of work which has had to be done, which has been considerable, but we think the Claimants should not recover from the Respondents the full amount of the advance on fees which they paid to the ICC.

A second matter upon which the Tribunal comments is that, following the end of the receivership, the Claimants instructed three firms of lawyers in [city] to act jointly. It would be unfair if the Respondents had to pay for any part of this duplication, and in assessing the costs to be paid by the Respondents the Tribunal has worked on the basis of the Claimant instructing two lawyers only.

On this basis the Tribunal concludes that the Respondents should pay the Claimants:

(a) lawyers' fees US$ 100,000

(b) travel and accommodation expenses US$ 50,000

(…)

The costs of the arbitration, fixed at US$ 250,000 are to be paid by the parties as follows:

Claimant US$ 50,000

Defendant US$ 200,000'