Investment Treaty Arbitration: cost, duration and size of claims all show steady increase

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Allen & Overy | 14 December 2017

Investment Treaty Arbitration: cost, duration and size of claims all show steady increase

by Matthew Hodgson, ([email protected]) and Alastair Campbell, ([email protected])

Update to Allen & Overy 2012 study shows increases on all metrics but, importantly, tribunals taking more nuanced and rigorous approach to parties’ costs

​Investors abroad are increasingly aware of their rights under investment treaties. This is reflected in the ​number of investment treaty arbitrations brought by investors seeking to enforce their rights against states, which has risen steadily over the past few years. Having acted in more than 70 investment treaty claims, acting for both investors and sovereign States, we are aware that all parties are keenly interested in how much they can expect to pay when bringing or defending these cases, how long the process typically takes, the success rates, and the amounts recovered. In a comprehensive update to the original study, we have carried out a review of publicly available awards and decisions released since 31 December 2012, resulting in a pool of 324 of these cases.

The key findings of the study are (with the results of the 2012 study in bold) are:

Average Time (from Request / Notice of Arbitration through to final Award)

  • 4 years (3 years, 8 months)

Success Rate

  • Claimant wins: 43% (41%)
  • Respondent wins: 56% (59%) (with 26% (26%) dismissed on jurisdiction) (an additional 1% of cases were terminated with an award that yielded sufficient data to be included in the study)

Amounts claimed/recovered

  • Average claim: USD 1,204,183,000 (USD 719,334,000 excluding the Yukos v. Russia arbitrations) (USD 491,656,000)
  • Average award (where claimant succeeds): USD 486,135,000 (USD 110,872,000 excluding Yukos) (USD 76,331,000)

Party Costs (i.e. fees and expenses of counsel, experts and witnesses)

  • Average claimant costs: USD 6,019,000 (USD 4,437,000)
  • Average respondent costs: USD 4,855,000 (USD 4,559,000)

Tribunal Costs (i.e. arbitrators’ fees/expenses and institutional charges)

  • Average costs: USD 933,000 (USD 746,000)
  • Average ICSID costs: USD 920,000 (USD 769,000)
  • Average UNCITRAL costs: USD 1,089,000 (USD 853,000)

Recovering costs

  • The successful party recovers some portion of its costs in 51% (44%) of cases (though the number has increased significantly since the 2012 survey, with the successful party in awards issued since 31 December 2012 recovering some of its costs in 64% of cases)
  • Successful investors are more likely to recover costs (58%) (53%), than successful States (47%) (38%) (however, successful States have recently had more success in this regard, recovering costs in 63% of cases since the end of 2012)
  • In contrast to the previous survey’s findings, successful parties are no longer significantly more likely to recover costs in UNCITRAL claims (72% since 31 December 2012 (69%)) compared with ICSID claims (61% since 31 December 2012 (36%))

The documents underlying the study are available here:

A Note on the Methodology adopted in compiling the data

A Master Table containing the basic data set

An Annulment Table containing data with regard to the decisions of ad hoc Committees.

Matthew Hodgson and Alastair Campbell, the authors of this study, have published an article on it which is available here:

"Damages and Costs in Investment Treaty Arbitration Revisited” Global Arbitration Review, December 2017

source: Allen & Overy