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asserts that salaries of judges are paid by States and capped daily, rather than
96
negotiated among disputing parties. Although fee caps are already in place
97
in certain ISDS frameworks such as ICSID, ad hoc fee structures are negotiated
and agreed upon privately by the parties.

Despite the above, some commentators have challenged the European

Commission’s claims that the ICS would reduce speed and costs. Professor
Joerg Risse compares the ICS to the International Tribunal for the Law of the
Sea (“ITLOS”) which handles 1.5 cases per year despite its EUR 18.8 million

annual operating budget and with the 24 cases total since its inception, the

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average cost per case is estimated at more than EUR 20 million On the other
hand, the ISDS “ad hoc arbitration [entail] virtually no or very little overhead
costs.” 99

Inevitably, it is difficult to predict ex ante, whether the ICS will actually
be as inefficient as the ITLOS or whether the Appeal Tribunal will lead to delays

despite procedural deadlines. The data on ISDS costs, however, indicate that

the single largest costs component is Party Costs (i.e. legal fees, and the fees
of any expert or factual witnesses) and not Tribunal Costs (i.e. the fees and
expenses of arbitrators along with any institution or appointing authority).
100
Data show that the average Party Costs for Claimants and Respondents are in

the region of USD 4.4 million and USD 4.5 million respectively. The average
101

96. Id.
97. The ICSID caps arbitrators’ fee schedules at USD 3,000 per day plus expenses. See ICSID Fees
and Expenses of Conciliators, Arbitrators, Commissioners and ad hoc Committee Members,
Schedule of Fees, effective 1 January 2017.
98. Joerg Risse, A New “Investment Court System”_Reasonable Proposal or Non-starter?, Global
Arbitration News, 25 September 2015. Retrieved from https://globalarbitrationnews.com/invest
ment-court-system-20150925/.
99. Id.
100. M. Hogson, Costs in Investment Treaty Arbitration: A Case for Reform, Transnational Dispute
Management, Vol. 11 Issue 1, January 2014, p. 1.
101. Id. (The study examined cases with a public award or decision as at 31 December 2012).

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