Frivolous and Abuse of Process Claims in Investor-State Arbitration: Can Rules on Cost Allocation Become Solution?

Abstract

The problem of frivolous and abuse of process claims has gained a significant traction in the deliberations of the UNCITRAL Working Group III. In light of this focus, this article examines existing approaches of the arbitral tribunals to identifying frivolous and abuse of process claims and allocating costs for these types of claims. The article reveals inconsistencies in shifting the costs, and concludes that current rules on cost allocation are unlikely to create ex ante deterrence in filing of such claims.