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13 Costs in Investment Treaty Arbitration

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Chapter Summary

Investment arbitration can be complex and lengthy, with costs often reaching millions of dollars and sometimes tens of millions. The current state of the law does not allow the lawyer to offer straightforward advice such as: "if we win, they pay us; if we lose, we pay them"; or "whatever happens, each side will pay its own costs and half the costs of the Tribunal". The variables on which this position depends include: the degree of success; the conduct of the parties; the complexity or novelty of the case; and considerations of equity and fairness. This chapter overviews the practical aspects of costs in investment treaty arbitration. It outlines the public international law basis for the once almost unchallenged approach to costs in investment arbitration, before considering costs allocation in ICSID and UNCITRAL proceedings. The chapter briefs about quantitative and qualitative analysis of recent arbitral jurisprudence on costs.

Keywords: arbitral jurisprudence; ICSID; investment treaty arbitration; public international law; UNCITRAL



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