A new empirical study examines costs, damages and duration in investor-State arbitration. This study is co-authored by Professor Yarik Kryvoi, Director of the Investment Treaty Forum of BIICL, with Matthew Hodgson and Daniel Hrčka of Allen & Overy examines over 400 investor-State cases conducted under ICSID, UNCITRAL and other arbitration rules, and over 70 ICSID annulment decisions. It gives a comprehensive account of how long ISDS proceedings last, how much they cost, how tribunals allocate those costs as well as the amounts of damages awarded.
It offers an empirical insight into the current position of costs incurred by parties in investor-State arbitrations and also changes in tribunals’ practice in fixing and allocating such costs. In addition to a quantitative focus, the authors analyse factors of potential relevance to costs of ISDS proceedings, including the choice of arbitration rules and the length of proceedings. This study aims to serve as a reference point for those involved in investor-State arbitrations as well as policymakers considering the reform of the ISDS system.
The study shows that costs have become a more prominent issue in investor-State arbitration. Although investor-State arbitral proceedings are now taking longer than several years ago, party costs have decreased over the past three years and the prospects of recovering costs have improved.
Another important finding of the study, is that the proportion of damages awarded compared to the amount claimed increased. While ICSID and UNCITRAL arbitrations cost about the same, ICSID annulment committees approach costs of annulment proceedings considerably differently.
The study presents a wealth of empirical data presented with infographics, charts and other visualisations related to duration costs and damages of investor-State arbitration. It can serve as a helpful reference tool for practitioners and policy-makers.
The report was launched at a virtual event, chaired by Anna Joubin-Bret, the Secretary of the United Nations Commission on International Trade Law and Director of the International Trade Law Division in the Office of Legal Affairs of the UN Secretariat.
