Comparative Guides
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Results: 4 Answers
International Arbitration
10.
Costs
10.1
How will the tribunal approach the issue of costs?
 
United States
The general practice is that the parties bear their own costs and fees. The parties are free, however, to agree on a different rule of cost allocation in their arbitration agreement, including by adopting institutional arbitral rules that give arbitrators the authority to grant such relief. American Arbitration Association (AAA) Rule R-47(c), for example, provides that in the final award, the arbitrator shall assess fees, expenses and compensation, and that the award may include attorneys’ fees if all parties have requested such an award or it is authorised by law or an arbitration agreement. International Institute for Conflict Prevention and Resolution (CPR) Arbitration Rule 19 provides that the tribunal shall fix the costs of arbitration in its award, including fees. The CPR Rules for Non-Administered Arbitration of Domestic and International Disputes became effective as of 1 March 2018. Under Rule 17.3, in apportioning costs, arbitrators may take into account, among other things, “the circumstances of the case” and “the conduct of the parties during the proceeding”. “This broad power is intended to permit the arbitrators to apportion a greater share of costs than they otherwise might to a party that has employed tactics the arbitrators consider dilatory, or in other ways has failed to cooperate in assuring the efficient conduct of the proceeding.”

For more information about this answer please contact: Jonathan Landy from Williams & Connolly
10.2
Are there any restrictions on what the parties can agree in terms of costs in an arbitration seated in your jurisdiction?
 
United States
Arbitration costs include the arbitrators’ fees and expenses, expert witness fees, costs of interim or emergency relief, legal fees and administrative costs. Further, most arbitral bodies charge a fee, in addition to the arbitrators’ fees, which cover the costs of managing the dispute. The parties can expressly state in their agreement the costs and fees that are recoverable and those that are not. Alternatively, the parties may give the arbitrators discretion to:

  • allocate costs and decide fees;
  • provide an allocation of costs and fees to the prevailing party;
  • allocate costs and fees in proportion to success; or
  • split costs equally.
For more information about this answer please contact: Jonathan Landy from Williams & Connolly