The rules of arbitral institutions are the closest thing to a “constitution” that governs cost decisions in most international disputes. In Part-III of this series, Datuk Professor Sundra Rajoo examines how the ICC, SIAC, and LCIA have each developed distinct — yet converging — frameworks for cost allocation. He also analyses the soft-law instruments that guide tribunals beyond institutional rules, including the ICC Commission’s empirical report on 676 arbitral awards and the CIArb Costs Guidelines. The part concludes with a focused examination of India’s 246th Law Commission Report and the transformative reforms to Section 31A of the Arbitration and Conciliation Act, 1996.
The “Costs Follow the Event” Principle versus “Parties Bear Own Costs”: Comparative Analysis
The allocation of costs in arbitration globally reflects a spectrum of approaches, ranging from strict adherence to the “costs follow the event” principle to the “American rule” permitting each party to bear its own costs.
Neither philosophy has achieved universal dominance. Instead, international arbitration has evolved towards hybrid solutions that blend outcome-based allocation with considerations of conduct, proportionality, and reasonableness.
This spectrum reflects deeper choices about fairness, access to justice, and the proper function of cost-allocation mechanisms.
The “Costs Follow the Event” (or “Loser Pays”) Doctrine
The “costs follow the event” principle operates on the premise that the unsuccessful party should indemnify the successful party for costs incurred in pursuing or defending the claim.
This approach has achieved predominance in common-law jurisdictions and in most modern institutional rules.
The ICC Commission on Arbitration in its empirical research found that in approximately 50% of awards reviewed, tribunals applied the costs-follow-the-event principle as a starting point, thereafter adjusting for conduct, proportionality, and other relevant circumstances.[1]
The rationale for this doctrine is multifaceted:
(1) it ensures that the successful party is not prejudiced by having to finance its opponent’s unsuccessful claim;
(2) it creates incentives for parties to conduct rigorous pre-dispute analysis and to settle weak claims;
(3) it aligns the party bearing costs with the party responsible for the dispute’s continuation; and
(4) it operates as a discipline discouraging frivolous or speculative litigation.
English courts have long endorsed this principle as foundational to the civil justice system, and international commercial arbitration has adopted the English approach as the international standard.[2]
The High Court of England and Wales in Veolia Water UK plc v Fingal County Council[3], stated that:
“The overriding starting position should remain that costs should follow the event. Parties who are required to bring a case to court in order to secure their rights are, prima facie, entitled to the reasonable costs of maintaining the proceedings. Parties who successfully defend proceedings are, again prima facie, entitled to the costs to which they have been put in defending what, at the end of the day, the court has found to be unmeritorious proceedings”
However, even jurisdictions and institutions formally committed to the costs-follow the-event principle routinely depart from strict application.
The ICC Commission Report notes that while tribunals adopt the principle as a “starting point,” they frequently adjust or modify the allocation based on:
(1) partial success by one or both parties;
(2) unreasonable or obstructive conduct during proceedings;
(3) failed settlement negotiations and Calderbank offer;
(4) the degree to which each party contributed to the efficiency or inefficiency of the arbitration; and
(5) other “circumstances of the case.”
The Chancery Division of the High Court of England and Wales in The London Borough of Tower hamlets v The London Borough of Bromley[4]observed that “one should depart from the general rule only where the needs of justice and the circumstances of the particular case require, and a measure of caution is needed“
The court in Dunne v Min for the Environment and Others[5] observed where a court considers that it should exercise discretion to depart from the normal rule as to costs, it must do so on a reasoned basis and indicate the factors which warrant such a departure.
A combination of factors is usually involved and while decided cases indicate the nature of factors which may be relevant, these will be determined on a case-by-case basis.
The arbitral tribunal in Westland Helicopters Ltd v. Arab Organisation for Industralization[6] awarded £18million against the losing party for he delayed the proceedings which lasted 13 years.
Similarly, the arbitral tribunal in Elgindata[7] where the arbitral tribunal asserted that:
‘It is now clear that a too robust application of the follow the event principle encourages parties to increase the costs of the litigation or arbitration, since it discourages parties from being selective as to the points they take. Because if you recover all your costs as long as you win, you are encouraged to leave no stone unturned in your efforts to win.’
Lord Woolf M.R. in Phonographic Performance Ltd v Rediffusion Music Ltd[8]modified the above assertion when he explained that:
“…to the effect that where the successful party raises issues or makes allegations which have failed, he may not only be deprived of some or all of his costs, but may be ordered to pay the whole or a part of the costs of the unsuccessful.
In situations whereby the successful party was unsuccessful in a major issue that led to an increase in the cost of the arbitration, the arbitral tribunal can depart from the principle that costs follow the event. See the case of Forster v. Farquhar (1893) 1 QB 564. The attitude of the parties in the course of the arbitral proceedings plays a significant role in whether the arbitrator will invoke his discretion in departing from the general principle.”
Clarke J in Cork County Council v. Shackleton[9] considered the circumstances in which it will be appropriate to depart from the general rule that costs follow the event on the basis that a case is a “test case”.
In that case, the applicant had succeeded in having an award of an arbitrator, who had ruled in favour of the third party in a planning matter, set aside in circumstances where this third party had raised a public law issue but also had a direct commercial interest in the outcome of the litigation.
Clarke J began by identifying what would constitute a test case for this purpose: Test cases can arise in very many different circumstances.
Where there is doubt about the proper interpretation of the common law, the Constitution, or statute law involving the private relations between parties, and where the circumstances giving rise to those doubts apply in very many cases.
Then it is almost inevitable, as a matter of practice, that one or a small number of cases which happen to be first tried will clarify the legal issues arising.
The “American Rule”: Each Party Bears Its Own Costs
Despite the tendency of tribunals to award at least a measure of legal costs to the prevailing party, some authorities question the existence of any “costs follow the event” or “loser pays” rule[10]
Despite these views, a detailed study of ICC awards concludes that where claimants were largely successful, they were awarded a substantial portion of the arbitration costs in most cases (39 of 48 cases) and a substantial portion of their legal costs in about two-thirds of all cases (24 of 38 cases).[11]
The “American rule” requiring each party to bear its own legal costs and splitting the institutional costs equally, operates as an outcome-neutral allocation mechanism.
Parties proceeding under this rule pay their own advocates and experts regardless of prevailing or failing on the merits, though institutional and tribunal fees are typically shared equally or apportioned based on utilisation.
The rationale underlying this rule emphasises access to justice: imposing cost liability on unsuccessful claimants may deter meritorious claims by risk-averse or resource-constrained parties, creating barriers to justice.
This concern proved particularly persuasive in early investment arbitration, where concerns arose that cost-shifting would disproportionately burden developing-country investors or human-rights claimants asserting novel legal theories.
However, empirical evidence suggests that the American rule has fallen into disuse in international commercial arbitration, where access-to-justice concerns are significantly diminished.
Only a minority of institutional arbitrations and ad hoc proceedings apply strict American-rule allocation.
Even where the rule is adopted, tribunals often qualify it by imposing costs consequences for particularly egregious conduct (frivolous claims, abuse of process, obstruction).
Hybrid and Discretionary Approaches
Most contemporary institutional rules and common-law jurisdictions have adopted hybrid approaches affording tribunals discretion to apply costs-follow-the-event as a rebuttable presumption, subject to departure where circumstances warrant.
The prevailing approach in modern international arbitration adopts a qualified version of the “costs follow the event” principle.[12] While success on merits remains the primary reference point, tribunals retain broad discretion to adjust cost allocation based on the circumstances of the case.
Partial success, procedural inefficiency, unreasonable conduct, and refusal of genuine settlement offer may all justify departure from a strict outcome-based allocation approach.
This approach provides structure and predictability while retaining flexibility to address case-specific justice concerns.
The SIAC Rules exemplify this approach: Rule 35(c) provides that “costs” includes “the legal or other costs of a party as determined by the tribunal” and Rule 38 affords the tribunal discretion to determine cost allocation “having regard to all the circumstances of the case, including…the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner.”
Institutional Approaches to Costs: Rules and Discretion
Arbitral institutions have developed increasingly sophisticated and detailed cost-allocation frameworks, reflecting decades of accumulated practice and normative refinement.
The rules also differ in the division of responsibility between the institution and the arbitral tribunal for the final determination of costs.
At the beginning of each arbitration, the arbitral institution administering the proceedings typically fixes an advance on cost (also called a “deposit”) to be paid in equal shares by the parties (although, in exceptional circumstances, a separate advance on costs can also be set).
The ICC Rules: Article 38 and the Discretionary Framework
The ICC Rules, Article 38, confer upon tribunals broad discretion to determine costs allocation “having regard to all relevant circumstances,” specifically including “the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner.”[13]
This formulation emphasises both the outcome of the dispute and the parties’ procedural conduct as cost-relevant factors.
The 2021 ICC Rules provide that the final award “shall fix the costs of the arbitration and decide which of the parties shall bear them or in what proportion they shall be borne by the parties.[14]
Appendix IV of the ICC Rules provides detailed illustrative examples of case management techniques facilitating efficiency:
(1) phased disclosure;
(2) document-production limits;
(3) narrowed discovery parameters;
(4) expert briefing and conferencing; and
(5) early mediation/settlement discussions.
Tribunals are encouraged to deploy these techniques and to consider parties’ responsiveness to efficiency suggestions when allocating costs.
The Court (the arbitration institution’s decision-making organ) fixes the arbitrators’ fees according to a published scale based on the amount in dispute and the complexity of the case; fees may be adjusted upward or downward only in “exceptional circumstances”.[15]
SIAC Rules 2025: Integration with Procedural Management
The SIAC Rules 2025 integrate cost considerations with procedural management, mandating in Rule 32.1 that procedures be “conducted with due diligence and professionalism and further to the principles set out in Rule 3.5(a) – Rule 3.5 (c).
Rule 3.5 provides:
“In all matters not expressly provided for in these Rules, the SIAC Court, the President, the Vice President, the Registrar, the SIAC Secretariat and any Emergency Arbitrator and Tribunal shall act in the spirit of these Rules and shall endeavour to ensure: (a) the fairness of the proceedings; (b) the expeditious and cost-effective conduct of the arbitration proportionate to the complexity of the claim and the amount in dispute; and (c) the enforceability of any award.”
Rule 57 defines costs comprehensively, and Rule 51.4 affords the tribunal discretion to determine cost allocation having regard to the parties’ contributions to efficiency, the outcome of the case, and any other relevant circumstances.[16]
Notably, the SIAC promulgates detailed guidance on procedural efficiency, including schedules for document disclosure, restrictions on expert number and scope, guidelines for witness examination durations, and recommendations regarding virtual or hybrid hearings.
Tribunals are encouraged to incorporate these guidelines into procedural orders and to penalise through cost allocations parties that ignore efficiency guidance or adopt unnecessarily escalatory procedural postures.
LCIA Rules 2020 and the “Conduct” Factor
The LCIA Rules distinguish between “Arbitration Costs” and “Legal Costs”.
Article 28.1 defines “Arbitration Costs” as the fees and expenses of the arbitral tribunal, the LCIA’s administrative charges, and costs of any expert appointed by the tribunal.[17] “Legal Costs”, defined in Article 28.3, cover the legal or other expenses incurred by the parties themselves.[18]
The LCIA Rules confer broad discretion on tribunals, while specifically directing consideration of “any conduct which unnecessarily increases the cost or duration of the arbitration” as a factor warranting adjustment to default cost allocation.31
This formulation operationalises the proposition that procedural misconduct: delaying tactics, dilatory pleading, unreasonable document-production refusals, obstruction of witness examination, may result in adverse costs consequences independent of the ultimate merits outcome.
The 2020 LCIA Rules provide for the arbitral tribunal to “decide the proportions in which the parties shall bear” the costs of the arbitration (as fixed by the LCIA Court)[19]
Article 28.4 further requires that orders on costs be “reasoned,” obligating tribunals to articulate the factors and reasoning supporting their costs determinations.
This requirement promotes transparency and permits supervising courts and future arbitrators to assess whether cost awards reflect principled application of the Rules.
Soft-Law Frameworks and Jurisprudential Guidance
Beyond institutional rules and statutory provisions, a rich body of non-binding guidance has emerged to inform cost assessment in international arbitration, including published tribunal awards, institutional reports, practitioner guidelines, and academic commentary.
The ICC Commission Report on Costs
The International Chamber of Commerce Commission on Arbitration published in 2015 a comprehensive report synthesising costs practice across 676 reviewed ICC awards spanning multiple years and spanning jurisdictions and industry sectors.[20]
Key findings include: approximately 50% of awards applied costs-follow-the-event as the primary allocation mechanism; approximately 30% applied an apportionment approach reflecting parties’ relative success; approximately 10% applied an American-rule allocation; and the remaining awards applied mixed or bespoke approaches.
The Report identified cost-relevant factors most frequently cited by tribunals:
(1) the outcome of the proceedings; the parties’ conduct and contributions to efficiency/inefficiency;
(2) whether settlement offers were made and rejected;
(3) the complexity of the dispute; whether preliminary objections succeeded; and
(4) the proportionality of costs to dispute value.
Notably, the Report found that tribunals fairly routinely reduced successful parties claimed costs on proportionality grounds, even where the party had prevailed on the merits.[21]
The CIArb Costs Guidelines
The Chartered Institute of Arbitrators (CIArb) published guidelines addressing costs assessment in international arbitration, synthesising international practice and offering nonbinding recommendations to arbitrators.[22]
The CIArb Guidelines emphasise that costs assessment requires balancing multiple considerations:
(1) ensuring the successful party is indemnified for reasonable costs;
(2) discouraging frivolous or unnecessary claims;
(3) maintaining proportionality to dispute complexity and value; and
(4) promoting procedural efficiency and good faith.
The Guidelines recommend that tribunals articulate clearly the cost-allocation methodology and factors considered, particularly where departing from standard cost-follow-the event allocation.
They further recommend that parties submit detailed cost statements with supporting evidence (invoices, timesheets, expert reports) sufficiently in advance of the hearing to permit tribunal review and identification of disputed items.
Published Arbitral Awards as Jurisprudential Authority
While arbitral awards do not constitute binding precedent in a technical sense, major awards addressing complex cost questions have achieved quasi-precedential status, influencing subsequent tribunal practice.
For instance, the UNCITRAL tribunal decision in Philip Morris Asia Ltd v Australia (Award on Jurisdiction and Admissibility, December 17, 2015) established influential jurisprudence regarding cost allocation where abuse of process is established.
The tribunal’s reasoning regarding proportional cost-shifting, despite the respondent’s ultimate success, has been cited and applied in numerous subsequent investment arbitrations.[23].
The 246th Law Commission of India Report and Reform of Section 31a
Judicial interpretation in India and other Model Law jurisdictions has reinforced the mandatory character of the tribunal’s duty to address costs.
The tribunal must exercise its discretion regarding costs. It cannot simply decline to address the issue.[24] Lord Mure in Smith & Co v. Liverpool and London and Globe Insurance Co.[25] emphasized the tribunal’s role as the final arbiter of costs.[26]
The tribunal’s authority extends to all submissions unless expressly excluded, allowing it to make specific directions regarding interlocutory costs, payment timelines, and set-offs against substantive awards.
The tribunal must specify the entitled party, the liable party, the amount or method of determining costs, and the manner of payment. Additional directions may be included to ensure reimbursement of costs advanced by the successful party.
While the tribunal enjoys broad discretion, this must be exercised judiciously and based solely on facts established during the arbitration. The principle of delegatus non potest delegare generally prohibits delegation of the costs’ decision, except where it is permitted by agreement or procedural law. Certain statutes may allow for the taxation of costs to be delegated to a court or institution, but this however, does not infringe upon the tribunal’s principal duty of determining costs.[27]
Importantly, the tribunal’s power to award costs must be exercised through the award itself; either as part of the substantive award or in a supplementary award.
Separate awards on costs may be subject to annulment proceedings, and if the substantive award is set aside, the costs award shall cease to have effect.[28]
The failure to address costs does not imply that each party bears its own costs, but rather that the tribunal has failed in its duty to adjudicate upon the same.[29]
In such cases, the tribunal remains seized of the matter until the defect is remedied or the time for requesting an additional award expires, as provided under Section 33(4) of the Arbitration Act.[30]
Therefore, the arbitral tribunal’s power to award costs is not merely discretionary but stands as a statutory obligation that must be diligently followed.
The tribunal must actively determine and allocate costs, ensuring that its discretion is exercised transparently and in accordance with the governing legal framework.
A defining feature of contemporary arbitration practice is the expansive conception of “costs.” Arbitral costs typically encompass the following:
(1) tribunal fees and expenses;
(2) institutional administrative charges;
(3) legal fees and related disbursements;
(4) expert and witness expenses; and
(5) reasonable incidental costs arising from the proceedings.
While tribunals enjoy authority to award these categories, recovery is generally limited to amounts deemed reasonable and proportionate.
Excessive billing, duplication of effort, or inefficiencies embedded within time records may be discounted, even where a party prevails within the dispute. The emphasis on reasonableness reflects a broader trend towards cost controls in arbitral process.
India’s 2015 amendment to the Arbitration and Conciliation Act, Section 31A, represented a watershed moment in Indian arbitration law, responding to findings by the 246th Law Commission Report that Indian arbitral practice had chronically undercompensated successful parties for their actual costs.
The Pre-Amendment Landscape: Cost Inhibition in Indian Arbitration
Prior to 2015, Indian arbitral practice reflected significant reluctance by arbitrators and courts to award full, market-based legal costs.
Multiple factors contributed to this inhibition:
(1) the Model Law provisions (adopted in 1996) afforded tribunals discretion without clear guidance;
(2) institutional rules offered limited specificity; and
(3) a cultural tradition of cost-restraint, originally derived from court practice under the Code of Civil Procedure 1908, persisted despite arbitration’s different nature and policy objectives.[31]
In 2005, noting the continuous failures by the courts and the tribunals to deal with the issue of cost awards, the Supreme Court of India noted that it is expected from the tribunals and arbitrators to make the most out of the provision and use it against the flowing of frivolous arbitration/litigation.
The practical consequence was deeply problematic:
(1) parties funding arbitrations bore substantial unrecovered costs, effectively subsidising unsuccessful opponents;
(2) the expense of pursuing claims became prohibitive for resource-constrained parties; and
(3) the proportional deterrent effect of cost-shifting was substantially diminished.[32]
Section 31A(1): Inclusive Definition of Costs
Section 31A of the Act clarifies that both courts and arbitral tribunals possess the discretion to determine:
(1) whether costs are payable by one party to another;
(2) the quantum of such costs; and
(3) the timing of such payments.[33]
The amended Section 31A(1) provides that “costs” include: arbitrators’ fees and expenses; court fees and witness fees; legal fees and expenses; institution administration fees; and “any other expenses incurred in connection with the arbitral or court proceedings and the arbitral award.”[34]
This formulation explicitly rejects any narrow or restrictive construction, instead adopting an expansive approach permitting tribunal consideration of genuine costs incurred in connection with the dispute’s resolution.
Section 31A(2): The “Costs Follow the Event” Presumption
Section 31A(2) establishes that the default rule is for the unsuccessful party to pay the successful party’s costs, subject to express tribunal discretion to apply a different principle “for reasons to be recorded in writing.”38
This formulation inverts the pre-amendment position: rather than cost-shifting being discretionary and exceptional, it becomes the norm, with departure requiring articulated justification.
The Supreme Court of India, in Oil and Natural Gas Corporation Ltd. v. Afcons Gunanusa JV[35], noted that the 2015 amendment was intended to provide statutory recognition to this principle. The rationale is twofold:
(1) as a matter of law, it logically follows from the decision on the underlying dispute and;
(2) as a matter of economic policy, it provides a deterrent against frivolous conduct and promotes compliance with contractual obligations.
However, the principle remains rather flexible as subject to various circumstances.
The tribunal retains the discretion to make a different order, provided it records its reasons in writing. The judiciary has long recognised the link between the success of a party and its entitlement to costs.
The provision further mandates that tribunal orders on costs be reasoned, directly addressing a pre-amendment deficiency where many awards simply awarded costs without explanation.[36]This requirement promotes transparency and principled decision-making.
The Fourth Schedule: Model Fee Framework
The 2015 Amendment introduced a Fourth Schedule to the Act, containing a model fee framework for arbitrators.[37]
The Schedule provides fixed fee ranges based on the claim amount, intended to promote cost predictability and prevent excessive arbitrator compensation.
Courts have subsequently applied the Schedule to determine “reasonable” arbitrator fees for purposes of cost assessment.
Read Part 4: Determining Cost Factors, Timing & Documentation →
References
[1] ICC, “Decisions on Costs” (2015), at 9–10.
[2] See, Westland Helicopters Ltd v Arab Organisation for Industrialisation (1980) 80 ILR 1, where arbitral tribunals began systematically applying the costs-follow-the-event principle to achieve efficiency and fairness.
[3] [2006] IEHC 240
[4] [2015] EWHC 2271 (Ch)
[5] [2007] IESC 60
[6] 80 ILR 622 (1987-10-23)
[7] (1993) 1 All E.R. 232
[8] (1999) 2 All ER 299 at 313.315.
[9] [2007] IEHC 334
[10] Carter, A Kiss for Arbitration Costs Allocation, 23 Am. Rev. Int’l Arb. 475, 479 (2012)
[11] See, e.g., Award in ICC Case No. 12877, in J.-J. Arnaldez, Y. Derains & D. Hascher (eds.), Collection of ICC Arbitral Awards 2012-2015 15, 18 (2019) (parties each responsible for half the costs where claimant succeeded on claim and respondent succeeded on counterclaim);Award in ICC Case No. 11509, in J.-J. Arnaldez, Y. Derains & D. Hascher (eds.), Collection of ICC Arbitral Awards 2012-2015 15, 18 (2019) (claimant succeeded on almost its entire claim and costs held to follow event); Final Award in ICC Case No. 10188 , XXVIII Y.B. Comm. Arb. 68, 92 (2003) (75/25% allocation of arbitration costs and legal costs, based upon relative success); Final Award in ICC Case No. 8528 , XXV Y.B. Comm. Arb. 341, 352-53 (2000) (claimant prevailed, holding that respondent bears 80% of arbitration costs and 60% of claimant’s legal costs); Final Award in ICC Case No. 8445 , XXVI Y.B. Comm. Arb. 167, 180 (2001) (awarding 75% of arbitration costs and legal costs, based on substantial success on merits of claimant’s claims); Interim Award in ICC Case No. 7645, XXVI Y.B. Comm. Arb. 130, 152 (2001) (awarding costs of arbitration in proportion to percentage of success on amounts claimed (96/4%); reducing costs of legal representation “if only a modest proportion” because prevailing party was represented by two rms); Schwartz, The Costs of ICC Arbitration, 4 ICC Ct. Bull. 8, 20-23 (1993); ICC, Extracts from ICC Awards on Arbitration Costs, 4 ICC Ct. Bull. 31 (1993). See also Y. Derains & E. Schwartz, A Guide to the ICC Rules of Arbitration 371-73 (2d ed. 2005).
[12] International Chamber of Commerce, Decisions on Costs in International Arbitration, ICC Dossier VIII (Paris: ICC 2015) (“ICC Report – Decisions on Costs, 2015”) , paras. 25–50, 100–120, App. B (national reports on jurisdictional variations), available at <https://iccwbo.org/publication/decisions-costs-international-arbitration-icc-dossiers/>.
[13] ICC Rules, 2021, Art. 38(2)–(3).
[14] 2021 ICC Rules, Art. 38(4). See also 2017 ICC Rules, Art. 38(4); 2012 ICC Rules, Art. 37(4); 1998 ICC Rules, Art. 31(3). See, e.g., Award in ICC Case No. 14630, in J.-J. Arnaldez, Y. Derains & D. Hascher (eds.), Collection of ICC Arbitral Awards 2012-2015 59, 74-75 (2019); Award in ICC Case No. 12877, in J.-J. Arnaldez, Y. Derains & D. Hascher (eds.), Collection of ICC Arbitral Awards 2012-2015 21, 31-32 (2019)
[15] ICC Rules, 2021, Art. 38(2), permitting fee adjustment “due to the exceptional circumstances of the case.”
[16] SIAC Rules, 2025 Rules 32.1, 57, 51. 31LCIA Rules, 2020, Art. 28.4.
[17] London Court of International Arbitration Rules (“LCIA Rules”) (1 Oct. 2020), art. 28.1.
[18] LCIA Rules, art. 28.3.
[19] 2020 LCIA Rules, Art. 28(2)
[20] ICC, “Decisions on Costs in International Arbitration” (Report No. 2015).
[21] Ibid., at 21–24.
[22] Chartered Institute of Arbitrators, “Guidelines for the Conduct of Arbitrations” (Fourth Edition, 2016), addressing costs determination at pp. [pages].
[23] See, Philip Morris Asia Ltd v Australia (UNCITRAL, PCA Case No. 2012-12), Award on Jurisdiction and Admissibility, December 17, 2015, particularly paras. [relevant paragraphs addressing costs methodology].
[24] See, Re Becker, Shillan & Co. and Barry Bros 1920 All ER Rep 64.
[26] See, Smith v. Liverpool and London and Globe Insurance Co 1887 SLR 24 672.
[27] Gary B. Born, International Commercial Arbitration (3d ed. 2021), § 25.04[C].
[28] Ibid, pgs. 3570–3575.
[29] Ibid, pgs. 3520–3535.
[30] Arbitration and Conciliation Act 1996, s.33(4).
[31] Law Commission of India, Report No. 246 (2014), at Chapter 4, documenting through empirical research that successful parties typically recovered only 30–50% of claimed costs in Indian arbitrations, compared to 70–90% recovery rates in international institutional arbitrations.
[32] See, Salem Advocate Bar Association v Union of India AIR 2005 SC 3353
[33] Arbitration and Conciliation Act 1996, s.31A.
[34] Arbitration and Conciliation Act, 1996, Section 31A(1) and Explanation. Ibid., Section 31A(2).
[35] See, Oil and Natural Gas Corporation Ltd. v. Afcons Gunanusa JV 2022 SCC Online SC 1122.
[36] Ibid., Section 31A(2), requiring reasons “to be recorded in writing” for costs orders.
[37] Arbitration and Conciliation (Amendment) Act, 2015, Schedule IV (introducing Schedule IV to the principal Act).