Author: Erik Wilbers*
Published: December 1998
Costs and Damages
Description: On January 20, 1995, the WIPO Arbitration and Mediation Center (the Center) organized in Geneva, in collaboration with the Swiss Arbitration Association (ASA), a Conference on Rules for Institutional Arbitration and Mediation. On that occasion, the Director of the Center, Dr. Francis Gurry, presented a paper on fees and costs explaining the general background to the approach taken by WIPO and summing up the advantages and disadvantages of the various options as expressed in the cost provisions of different arbitral institutions. The present article seeks to complement that comparative summary by providing a more detailed textual analysis of, and practical guidance to, each of the WIPO Rules relating to fees and costs.
Perhaps the most important requirements regarding arbitration fees and costs are transparency and cohesiveness of the relevant provisions and a reasonable level of fees. The WIPO provisions, including the Schedules of Fees, represent a modern balance between the interests of users, the position of the arbitrators, and the role of the administering authority. The structure of the WIPO Rules on fees and costs is straightforward and follows the logical order of the proceedings.
At the outset of the procedure, the Claimant is to pay a flat, relatively modest registration fee to the Center (Article 67; Schedule of Registration Fees). Following the Claimant’s submission of the Request for Arbitration, it must pay a further fee to the Center (Article 68). Subject to a maximum amount (which, again, is relatively low), this administration fee is calculated on the basis of the amount of the claim (Schedule of Administration Fees). An administration fee, again on an ad valorem basis, is payable also by a Respondent who files a counterclaim (Article 68). The Center fixes the third component of the procedural costs, the fees of the arbitrators, within the minimum and maximum ranges indicated by the Schedule of Arbitrators’ Fees, and in consultation with the parties and the arbitrators (Article 69; Schedule of Arbitrators’ Fees).
*Erik Wilbers, a national of The Netherlands (1958), is a Senior Counselor at the WIPO Arbitration and Mediation Center, World Intellectual Property Organization, Geneva. Following studies in The United States and The Netherlands, Mr. Wilbers was a research fellow at the Max Planck Institute for Intellectual Property Law in Munich. Before joining WIPO in 1996, he practiced with the law firm of Clifford Change in Amsterdam, was on the legal staff of the Iran-United States Claims Tribunal in The Hague, and headed a division of the Compensation Commission of the United Nations Security Council dealing with claims arising from the Gulf War. Mr. Wilbers has written and spoken on a variety of legal subjects, including arbitration and intellectual property.