Arbitrators Fees and expenses | Arbitration Q&A by Hesham Elrafei FCiarb

 

Fees and expenses of arbitrators 

What factors should be considered in determining the arbitrator's fees and expenses?

Arbitrators' fees & expenses shall be reasonable in amount, taking into account the following factors:

•  amount in dispute, 

• the complexity of the subject matter, 

• time spent by the arbitrators 

• any other relevant circumstances of the case. 

What if the appointing authority has its own method or schedule for determining the arbitrator's fees in international cases?

If there is an appointing authority and it applies a particular method for determining the arbitrator's fees in international cases, the tribunal in fixing its fees shall take that schedule or method into account. 

When should the tribunal send its proposal to the parties on how it suggests determining its fees and expenses?

Once formed, the tribunal will send the parties its fee proposal as to how it suggests determining its fees and expenses, including any rates it intends to apply. 

What's the process to challenge the tribunal fee proposal? What's the appointing authority's power to adjust the tribunal fee proposal?

Once received, a party has 15 days to ask the appointing authority to review the tribunal fee proposal. 

Once received, the appointing authority has 45 days to review whether the tribunal fee proposal is reasonable compared to the:

• amount in dispute, 

• the complexity of the subject matter, 

The appointing authority will adjust the tribunal's unreasonable proposal of fees, which shall be binding upon the tribunal.  

Tribunal determination of fees and expenses

The tribunal will inform the parties of the tribunal's fees and expenses that have been fixed and will explain how those amounts have been calculated; 

How can the party ask the appointing authority to review the tribunal's determination of fees and expenses?

Once received, the party has 15 days to ask the appointing authority to review the tribunal’s determination of fees and expenses. 

If no appointing authority exists, or if the authority fails to act on time, then the review shall be made by the Secretary-General of the PCA; 

If the appointing authority or the PCA Secretary-General finds that:

• the tribunal’s determination is inconsistent with its’s proposal for fees and expenses 

• or is otherwise manifestly excessive, 

it has 45 days to make binding adjustments to the tribunal’s fee determination to meet the following criteria: 

•  amount in dispute, 

• the complexity of the subject matter, 

• time spent by the arbitrators 

• any other relevant circumstances of the case. 

If the tribunal fee determination has been adjusted by the appointing authority, what should the tribunal do?

Any such adjustments shall either be included by the tribunal in its award or, if the award has already been issued, be implemented in a correction to the award. 

Throughout the procedure under paragraphs 3 and 4, the tribunal shall proceed with the arbitration. 

Challenging the tribunal fee determination shall not:

• Affect any determination in the award other than the tribunal’s fees and expenses; 

• Delay the recognition and enforcement of all parts of the award other than those relating to the determination of the arbitral tribunal’s fees and expenses.