Currently, a fifth of arbitration cases finish with the parties bearing their own costs plus half the costs of the hearing. But, according to the researchers, only 5 per cent of those involved in the process support that approach, with the vast majority saying that tribunals should allocate costs according to the result even more frequently than is currently the case.
Improper conduct
The research – conducted jointly by the University of London’s School of International Arbitration at Queen Mary and New York-based law firm White & Case – was launched at this week’s International Bar Association annual conference in Dublin. It also found strong backing for improper conduct during arbitrations – either by lawyers or the parties themselves – to be taken into account in cost awards.
Most respondents also wanted to see decisions on awards taken within three months of the end of an arbitration process where a sole arbitrator was involved. In arbitrations involving three-member panels, 37 per cent of respondents said awards should be rendered within three months and another 41 per cent said between three to six months.
Bucking trends
The survey results bucked some perceived trends of international arbitration. Despite recent proposals calling for an end to unilateral party appointment, 76 per cent of respondents to the survey preferred selection of the two co-arbitrators in a three-member tribunal by each party unilaterally.
Similarly, while cross-examination has been criticised as an ineffective common law procedure, the survey revealed strong support for it in international arbitration to test witness evidence. The vast majority of respondents believe that cross-examination is either always or usually an effective form of testing fact witnesses and expert witnesses.
Among other findings, respondents preferred adopting IBA arbitration guidelines as they provide for more flexibility.
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