Costs and payment of costs
There are three aspects to the payment of the ICC costs deposit, or “advance on costs” as it is called under the Rules of Arbitration:
- A non-refundable filing fee of US$ 3,000, paid by the claimant when it files a "Request for Arbitration" as a condition to the Secretariat notifying the "Request" to the respondent(s). A US$ 3,000 non-refundable fee is also due from any party that files a request to join an additional party under Article 7.
- A provisional advance, fixed by the Secretary General upon or soon after receipt of the "Request", to be paid by claimant. The provisional advance is intended to cover the costs of arbitration until the "Terms of Reference" are completed. The Court and Secretariat normally will wait for this provisional advance to be paid before taking significant steps towards the constitution of the arbitral tribunal.
- The advance on costs fixed by the Court. Usually this is fixed soon after the "Answer" or any counterclaims are filed, that is as soon as the Court has sufficient information to fix it. The parties are normally requested to pay the advance on costs in equal shares at the time the Secretariat transfers the case-file to the arbitral tribunal. Note that the payments already made by the claimant (i.e. the non-refundable filing fee and the provisional advance) are credited towards claimants’ share of the advance on costs. In arbitrations with more than two parties, the Court has discretion to require that the payment of the advance on costs is allocated appropriately.
The Court will fix the actual costs of the arbitration (i.e. the ICC administrative expenses and the arbitrators’ fees) at the end of the case. Those costs, as well as the arbitrators’ reimbursable expenses, will then be paid from the advance on costs. If there is any money left over it will be reimbursed to the parties.
ICC’s administrative costs and the arbitrators’ fees are fixed according to a scale of costs based on the monetary value of the claims. This system offers predictability for the parties, who can estimate the range of costs as soon as the value of the claims is known. A costs calculator is provided on the website for this purpose. Where necessary, the Court has discretion to fix the costs at an amount higher or lower than that which is generated by the costs scales.
At the end of an arbitration, parties may make costs claims in respect of the costs to be paid out of the advance on costs (i.e. the arbitrators’ fees and expenses and ICC administrative expenses) and in respect of reasonable other costs they may have incurred (e.g. legal costs and expert costs). The arbitral tribunal can then award costs in favour of or against one or more parties.