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Call for Papers: TDM Special Issue on the "Time and Cost Issues in International Arbitration"

16 June 2016

Update September 2018 TDM 4 (2018) Special Issue on "Time and Cost Issues in International Arbitration" has been published, you can view the table of contents here https://www.transnational-dispute-management.com/journal-browse-issues-toc.asp?key=79 (free excerpt also available)

We are pleased to announce a forthcoming TDM special issue on "Time and Cost Issues in International Arbitration."

This Special Issue will be edited by Wendy Miles QC (Debevoise & Plimpton LLP) and Philippe Cavalieros (Simmons & Simmons LLP), and will focus on a subject that is central to the concerns of arbitration users, many of whom perceive arbitration proceedings as being too expensive and lengthy.

Time and cost concerns in international arbitration are not new - users have become more cost-conscious particularly since the global financial crisis. What is disheartening is that these concerns are consistently and still being identified as amongst the worst traits of arbitration, as revealed in the latest 2015 survey conducted by the School of International Arbitration at Queen Mary University (www.arbitration.qmul.ac.uk/docs/164761.pdf)

At a time when the legitimacy and efficacy of arbitration as a system of dispute settlement is being questioned, it is all the more important to discuss time and cost issues, analyze to what extent these concerns are warranted, pinpoint the contributing factors, and identify potential solutions.

To better inform users of cost allocation practices and how they can be used to control time and costs, the ICC Task Force on Costs recently released a Report on Decisions on Costs in International Arbitration (http://www.iccwbo.org/Data/Policies/2015/Decisions-on-Costs-in-International-Arbitration/ (pdf)), which sets out tribunals' considerations, and the different approaches to cost allocation across arbitral institutions and national laws.

In its survey, the School of International Arbitration at Queen Mary University suggested several measures aimed at saving costs, and asked respondents to rate their effectiveness. The most positively ranked suggestion was to require tribunals to "commit to and notify parties of a schedule for deliberations and delivery of final award." Other high ranked cost-saving proposals included "stronger pre-appointment scrutiny of prospective arbitrators' availability," "sanctions for dilatory conduct by parties or their counsel" and "requirement for early procedural conference." It appears that users want arbitrators to take on a more proactive approach to setting and meeting deadlines, and sanctioning dilatory tactics.

Along this vein, the International Court of Arbitration at the ICC recently introduced a policy whereby arbitrators who fail to submit draft awards within three months after the last substantive hearing, absent reasonable justification, will have their fees reduced (www.iccwbo.org/News/Articles/2016/ICC-Court-announces-new-policies-to-foster-transparency-and-ensure-greater-efficiency).

Possible topics for submission to the Special Issue would include a discussion of the cost-saving measures proposed in the Queen Mary survey or a commentary on the potential impact of the ICC's newly implemented policy to reduce arbitrator fees for unjustified delays. Other ideas could include but are not limited to the following:

• Power of arbitrators to sanction party or counsel behavior that delays or increases the cost of arbitration (e.g. power to order legal counsel to pay the opposing party's legal costs, etc.)
• Enforceability issues that may arise from sanctions imposed by arbitrators
• Whether guidelines and checklists help foster cost-effective behavior
• Different types of funding options for arbitration users, whether impecunious or not
• The effect of a party's insolvency during proceedings
• Use of political risk insurance or arbitration award default coverage
• Recoverability of party costs other than institutional, legal, or expert/witness fees (e.g. sums owed to third party funders, in-house costs, etc.)
• Pressure in the legal market to prolong arbitral proceedings

We invite all those with an interest in the subject to contribute articles or notes on one of the above topics or any other relevant issue. Proposals for papers (abstracts) should be submitted to the editors by November 2016, publication is expected in 2017.

Feel free to circulate this call for papers amongst friends, colleagues and other people who you think may have an interest in this topic.

 

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