Note to readers

In international arbitration, no party has an automatic right to recover any costs of the arbitration, defined by Article 37(1) of the 2012 ICC Arbitration Rules as including the fees and expenses of the tribunal and the arbitral institution and the reasonable legal and other costs incurred by the parties. Article 37(4) requires the tribunal only to fix the costs of the arbitration in its final award and decide which of the parties shall bear them or in what proportion they shall be borne by the parties. Unlike the ICC Rules, some arbitration rules, such as those of CIETAC, DIS, LCIA, PCA and UNCITRAL, incorporate a rebuttable presumption that the successful party may recover such costs from the unsuccessful party.

The considerations contained in this Report are intended to inform users of arbitration how tribunals may allocate costs in accordance with the parties' agreement and/or any applicable rules or law. However, they should not be regarded as affecting a tribunal's discretion to allocate costs. In particular, the fact that a tribunal does not take into account any or all of these considerations in its decision on the allocation of costs is not and cannot be a basis upon which to dispute or challenge the exercise of its discretion to allocate costs.

This Report does not endorse any particular approach to decisions on costs. Nor does it establish guidelines or checklists.

Acknowledgements

This Report of the ICC Commission on Arbitration and ADR was prepared by the Commission’s Task Force on Decisions as to Costs.

Task Force Co-Chairs: Bernard Hanotiau, Julian Lew, Wendy Miles, Philippe Cavalieros.

With the participation of:

Christopher Newmark (Chair, ICC Commission on Arbitration and ADR), Peter Wolrich (former Chair, ICC Commission on Arbitration and ADR), Hélène van Lith (Secretary to the ICC Commission on Arbitration and ADR), Anne Secomb (former Secretary to the ICC Commission on Arbitration and ADR);

Task Force members: Nabil N. Antaki, Hamid Reza Aslani, Hans Bagner, Efraim Barak, Yeheskell Beinisch, Eduard Beltran Betriu, Marc Blessing, Fabio Bortolotti, Olivier Caprasse, Carlos Alberto Carmona, Luiz Claudio Corrêa da Costa de Aboim, Christian Dorda, Jalal El Ahdab, Nils Eliasson, José Tomás Errázuriz, Louis Flannery, Cecilia Flores Rueda, Luigi Fumagalli, Isabelle Hautot, Axel Heck, Naoki Iguchi, Sapna Jhangiani, Nihad Kabir, Christopher P. Koch, Christopher Lau, Crenguta Ioana Leaua, Timothy Lindsay, Claes Lundblad, Alexandr Mares, Isabelle Michou, Kirin Shanti Moganasundram, Reza Mohtashami, Nathalie Najjar, Rajendra Navaratnam, Colm O'Hoisín, Bazil Oglinda, Yejide B. Osunkeye, Chris Parker, Pawel Pietkiewicz, Wilson Pimentel, Adedoyin O. Rhodes-Vivour, Stefan Riegler, Mika Savola, Markus Schifferl, Matthew Secomb, Petri Taivalkoski, Rachel Thorn, Stamatios Tsetos, Alexander Vaneev, Herman W. Verbist, Maria Vicien-Milburn, Nina Grigorievna Vilkova, Claus von Wobeser, Tomasz Wardynski, Muhammad Zahir, David Zaslowsky, Roland Ziadé;

ICC Court Documentation Centre: Sylvie Picard Renaut, Stéphanie Torkomyan, Betina Damvergi, and interns Matthew Hudson and Vanessa Strauss.

The Report was approved by the Commission on Arbitration and ADR at its meeting in Paris on 7 May 2015 and by the ICC Executive Board at its 149th Session in New Delhi on 16 September 2015.

Contents

Report

Appendix A: Analysis of Allocation of Costs in Arbitral Awards

Appendix B: Summary of National Reports

Appendix C: Relevant Provisions of Arbitration Rules