brought under the dominican republic - central america - ita

6.6. The Claimant acknowledges that an award or allocation of costs typically accompanies
a final award. It submits, however, that ICSID Arbitration Rule 28(1) also allows
this Tribunal to make an interim determination of costs at any stage of these
proceedings, relying upon Professor Schreuer‟s commentary on the ICSID Convention:
―The apportionment of costs need not relate to the entire proceeding. The Tribunal
may charge one party the costs or a major share of the costs of a particular part of
the proceeding. Often this will be in reaction to undesirable conduct by a party in
the proceedings. ... A party whose conduct has necessitated a particular measure
may have to bear the resulting costs.‖ 202
6.7. The Claimant submits that the Respondent should now bear all the costs of its objections;
and that the Tribunal should proceed to allocate such costs in its decision (not
award) on jurisdiction, for the several reasons which follow.
6.8. The Claimant submits that, other than CAFTA Article 10.20.6 which provides that
the Tribunal “shall” consider whether a party's positions were “frivolous” in exercising
its discretion to award “reasonable costs and attorney's fees” following an objection
made under CAFTA Articles 10.20.4 or 10.20.5, the cost provisions of
CAFTA, the ICSID Convention and the ICSID Arbitration Rules do not provide any
particular standard for tribunals to use in determining how to allocate costs.
6.9. However, so the Claimant submits, both arbitration tribunals and learned commentators
recognize that costs may be allocated against a party as a sanction for procedural
misconduct, or simply as a response and, hopefully, a deterrent to undesirable conduct
by a party in the proceedings. For example, according to the Claimant, tribunals
have awarded costs against a respondent which delayed the arbitration and increased
the costs of the arbitration by making multiple objections and motions; against a respondent
which submitted its objections with considerable delay, leading to an unnecessary
escalation in the costs of the claimant; and against a claimant whose characterisation
of the evidence was unacceptably slanted and whose submissions had
been without adequate foundation.
202
Schreuer (et al), The ICSID Convention: A Commentary (2 nd ed), p. 1231.
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