Allocation of costs in multiparty arbitrations: a critical approach of English law and the ICC Rules of Arbitration

Abstract

There is some skepticism about the timing and measurement criteria of costs in multiparty arbitrations. The trend in the ICC arbitration practice is that the award of parties’ costs are subjected to an equation of ‘complexity, and time, cost and effort criteria’. By looking at the ICC costs-contained institutional environment, this article will pose a broader question: “have fixed and cost-contained vehicles run out of road?” The distillation of a procedural agreement will enable parties to bend down the narrow limits featured in fixed and cost-contained institutional provisions. Whilst the ICC Rules of Arbitration 2021 may advance cost-contained measures for administration costs, the parties’ legal costs of outside legal counsel, witness and expert statements, may occasionally interrupt rather than facilitate the parties’ procedural and funding/ asset mobility in the multipartite regime; especially where the joinder procedure is met with imprecise costs orders requests, inflated by an unstable claims environment.