Authors: Robert H. Smit and Tyler B. Robinson*
Published: October 2010
Time Limit for Rendering Award
Interests and Costs
Apportioning of Costs
Expenses of Parties
Arbitration costs — “procedural” (arbitrator fees and expenses and administrative fees) and “party” (attorneys’ and experts’ fees and expenses) — are on the rise in international commercial arbitration and a growing source of user disaffection. The more significant arbitration costs become, the more important is the manner in which those costs are allocated and awarded as part of an arbitral award. While parties are free to prescribe the manner of allocating arbitration costs in their arbitration agreement, they seldom do; or they do so in such general terms as to provide little concrete direction or guidance to the arbitral tribunal. Cost awards, commentators have observed, are therefore by and large entrusted to the broad discretion of the arbitral tribunal appointed in each particular case — as a result of which cost awards vary wildly from case to case and “sometimes fundamentally without any apparent reason.”
*Robert H. Smit and Tyler B. Robinson are partners at Simpson Thacher & Bartlett LLP. The authors wish to thank Simpson Thacher associate Andrew Dempster for his assistance in the preparation of this article.