Posts tagged: saving cost

Costs – Assessing the Amounts

The Courts have been grappling for some time with only allowing a proportionate and reasonable amount to be recovered by the successful party.  A useful rule of thumb (which could apply equally to arbitration) was expressed by Leggatt J in Kazakhstan Kagazy plc v Zhunus [2015]:

The touchstone is not the amount of costs which it was in a party’s best interests to incur but the lowest amount which it could reasonably have been expected to spend in order to have its case conducted and presented proficiently, having regard to all the relevant circumstances. Expenditure over and above this level should be for a party’s own account and not recoverable from the other party.”

This should be readily translatable into an answer expressed in currency.

ICC Arbitration Debate on Arbitrator and Counsel from same Chambers

At an interesting debate on Tuesday (14 June 2011) hosted by Linklaters there was a clear feeling that whilst UK practitioners would be confident that there was no perception difficulty with counsel and arbitrator from the same chambers, the same could not be said from an international perspective.  The topic is very topical especially in light of the ICSID Solvenia decision where a party was prevented from using counsel of its choice.  That decision has been widely criticised and, essentially, not followed in a later ICSID decision, Romania where the tribunal regarded the Slovenia decision as a sanction for the failure to make proper disclosure (of the identity of counsel) in a timely fashion. 

There was consensus at the debate that early disclosure was desirable, indeed essential, in order that any issue could be dealt with at an early stage and before time and cost were wasted.  The tip that appeared to have near universal endorsement was that there should be a running (i.e. regularly updated) “cast-list” identifying counsel engaged by any party.   John Beechey of the ICC Court said that the ICC was encouraging tribunals to adopt this practice.  Equally, John made it clear that:

(a) the ICC Court would back tribunals robustly if there was any attempt to derail an arbitration by a late and tactical engagement of counsel from the same chambers as a member of the tribunal;

(b) that it was the UK that needed to get its house in order rather than the rest of the world being made to understand a peculiarly UK phenomenon ; and

(c) that the ICC, at least, had no appetite to make all appointments to a tribunal as a route to avoid any potential conflict.

Debevoise promote efficiency

Earlier this year Debevoise & Plimpton launced their Protocol to Promote Efficiency in International Arbitration.  It has the laudible aim evident in its title.  The Debevoise commitment is to “…explore with our clients how such procedures may be applied in each case.”  This recognises that it may be in a party’s interests for the reference to be slow and drawn out, even if, in consequence, it is more expensive.

Whilst none of the procedures in the Protocol are, in themselves, especially innovative the collection of a series of good ideas in one document is to be welcomed.

The Protocol is available at the Debevoise website.

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