Part I Commentary on the ICDR International Rules, 34 Article 34—Costs

Subject(s):

Arbitral tribunals — Arbitration — Remedies and costs

This chapter focuses on Article 34 of the ICDR Rules, which empowers the tribunal to fix the ‘costs of the arbitration’ and to allocate those costs between the parties. As with most sets of arbitration rules, Article 34 identifies what kinds of costs may be recoverable but leaves the tribunal a broad discretion to decide what costs are reasonable and how recovery of those costs should be allocated between the parties. Evidently, the parties’ agreement, the applicable national laws, and the legal cultures of the respective parties and the tribunal may also play a role in this determination. In considering Article 34, it is also important to bear in mind that US domestic litigation practice provides very few opportunities for any cost-shifting with respect to a party’s attorney fees or otherwise. This so-called ‘American Rule’, at least to some extent, remains the practice in US domestic arbitration.