Tribunal Award Research Articles

Awarding Costs and Attorneys' Fees in International Commercial Arbitrations

There has been remarkably little written to date on the subject of the awarding of costs and attorneys' fees in international arbitrations. This is somewhat surprising because, as the popularity of international arbitration has steadily increased, so too has the cost of resolving disputes through arbitration. Today, it is not uncommon for legal costs in international arbitrations to run into the millions of dollars and, in some cases, even exceed the amount in dispute. (Indeed, in one celebrated arbitration, the tribunal awarded the prevailing party $14.5 million in costs and fees.) Despite that whether a tribunal awards costs and fees may be as important, from a monetary standpoint, as the principal claim itself, there is no uniform or rationale procedure for awarding them. The current methods used to evaluate claims for costs and fees are arbitrary or difficult to use and, as a result, similarly situated parties have received vastly different results in cases involving significant amounts of money. These decisions ultimately undermine the legitimacy of the arbitral process. They also lead to unpredictability, making a case more difficult to settle. This article is novel in that it undertakes an exhaustive examination of the practice of awarding costs and fees in international arbitrations and offers a model approach for deciding claims for costs and fees. Part I reviews the history of awarding costs and fees and the approaches that countries have adopted to resolve these claims. It concludes that an overwhelming number of countries permit such awards and follow the principle that the prevailing party is entitled to reimbursement from the losing party for amounts spent in connection with the arbitration, including attorneys' fees. Part II examines the approaches used by international arbitral tribunals in resolving claims for costs and fees and determines that they are inadequate. Part III sketches a new model for resolving claims for costs and fees that would simplify the tribunal's task in awarding costs and fees, and bring much needed uniformity and predictability to the area.

State Responsibility for Failure to Enforce Iran-United States Claims Tribunal Awards by the Respective National Courts

State Responsibility for Failure to Enforce Iran-United States Claims Tribunal Awards by the Respective National Courts

The Validity of Truncated Tribunal Proceedings and Awards

TRUNCATED TRIBUNALS – tribunals which lack the participation of a member – are not a new phenomenon and indeed for a long time have presented problems in respect of the validity of proceedings and awards. An early example may be the Jay Treaty Cases .1 The Jay Treaty of 1794 between the United States and Britain provided for adjudication of various legal issues by mixed commissions. Two American commissioners withdrew in February 1799, stating that they were entitled to withdraw by the provisions of the Treaty and thereby suspend proceedings. The British Government also withdrew its commissioners in retaliation for the American withdrawal from the commission. However, the case was based upon an unusual clause in the Jay Treaty. In 1872 in the Alabama Claims Arbitration 2 between the United States and the U.K., Sir Alexander Cockburn, British member of the tribunal, refused to sign the award. In the Cauca case3 (1902) and the Sabotage case4 (1933) and the French–Mexican case5 (1924) the tribunal decided in the absence of a member of the tribunal. The party whose appointed arbitrator was absent objected to the decision and did not accept it as a valid award. In the Cauca case the Colombian Government brought a claim before the American courts which was rejected by the U.S. Supreme Court.6 The problem also arose before the International Court of Justice in the Peace Treaties when the court stated that a refusal to fulfill a treaty obligation involved international responsibility and that the parties were under an obligation to appoint their representatives to the Treaty Commissions. The court also stated that the practical impossibility of creating the Commission provided for in the Treaties was one thing: international responsibility was another.7 The following questions arise: what happens when a dissenting …

General Principles Governing Foreign Investment as Articulated in Recent International Tribunal Awards and Writings of Publicists

General Principles Governing Foreign Investment as Articulated in Recent International Tribunal Awards and Writings of Publicists

International Chamber of Commmerce Court of Arbitration: Final Award of the Arbitral Tribunal in Arbitration Between National Oil Corporation and Libyan Sun Oil Company (Withdrawal from Exploration and Production Sharing Agreement)

In Its briefs dated September 15 And November E, 19E5, N.O.C. did not Invoke as being a withdrawal, any action from SDN-OIL In ceasing performance before the Request for Arbitration was filed, other than the “force mejeure” excuse. Its argumentation was different. N.O.C. considered that, assuming that SUN-OIL had not withdrawn from the EPS* In 1962, there would be withdrawal If SUM-OIL does not resume, or does not show that it intends to resume, the Exploration Operations in spite of the Arbitral Tribunal's award regarding the Invalidity of the force majeure excuses. In such case, SUN-OIL would have to pay N.O.C. the costs of the uncompleted portion of the Exploration Program, as provided under Art. 3.4. of the EPSA.

International Centre for Settlement of Investment Disputes: Arbitral Tribunal Award in Liberian Eastern Timber Corporation(LETCO) v. The Government of the Republic of Liberia

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Continuous Ownership of a Claim: A Hard Case at the Iran - United States Claims Tribunal makes Bad Law

international arbitration has to date worked exceedingly well at the Iran – United States Claims Tribunal.1 Over a period of five years, the Tribunal has resolved hundreds of cases. Further its opinions have provided a wealth of precedent that will serve the field of international law well for years to come. A recent tribunal award, however, is not likely to serve as a beacon on the important issue of continuous ownership of a claim. The case is International Systems & Controls Corporation v. The Republic of Iran, et al. 2 The award was issued in September 1986, executed by Chairman Briner and Arbitrator Bahrami-Ahmadi. It drew a stinging dissent from American Arbitrator Charles N. Brower, which, in essence, said this hard case made bad law. Two points troubled Brower: first, he suggests that a procedural lapse by the Tribunal severely prejudiced claimant; and secondly, he suggests that the Tribunal intentionally avoided the vexing factual questions raised by the case, and in doing so erred greatly on the jurisdictional issue decided. The International Systems case was indeed complex. It presented the Tribunal with three difficult issues: (1) whether ISC had continuously owned the claim, a prerequisite for Tribunal jurisdiction; (2) whether ISC had bribed Iranian officials in 1974–75 to secure the contracts, which, if true, Iran claimed, voided the contracts; and (3) whether ISC substantially completed its obligations to construct a billion dollars worth of pulp and paper factories, forests and supporting facilities from 1974 to 1979 in two remote regions in Iran. The complex issues, under Tribunal procedure, had to be resolved without discovery of any kind from either party, without access to the facilities, and in a hearing before the arbitrators restricted the three days for both sides – which was the second longest hearing yet permitted by …

Delimitation of the maritime boundary in the gulf of Maine area

Abstract The first delimitation of a single maritime boundary by an international tribunal occurred on October 12, 1984, when a Chamber of the International Court rendered its decision in the Gulf of Maine case. The boundary established by the Chamber was based on geography taking account of the disparate lengths of coastline of the parties and giving partial effect to Seal Island off the coast of Nova Scotia. The boundary was made up by three segments: a bisector, a median line and a perpendicular extending to a distance of 200 miles from the coast. The methods used in the construction of the boundary are examined and compared with those methods employed by other decisions and awards of international tribunals.

The Iran-United States Claims Tribunal

In a notice issued by David P. Stewart, Administrator for Iranian Claims, under date of June 24, 1983, the Department of State informed claimants before the Iran-United States Claims Tribunal at The Hague of recent developments at the Tribunal with specific regard to settlement of claims. The notice read in part:On two recent occasions, the Tribunal had refused to certify as Tribunal awards settlements submitted by U.S. claimants and Iran. In one case the amount of the proposed settlement significantly exceeded the amount of the claim. In the other, the settlement was in the full amount of the claim plus interest, but the settlement required that, after the settlement had been paid from the Security Account at the N.V. Settlement Bank of Netherlands, more than half of the amount of the settlement would be paid to Iran for taxes allegedly owed. The U.S. claimant had previously denied that any such taxes were owed. The United States—and, to the best of the Department of State’s knowledge, all U.S. claimants—has consistently denied that Iranian counterclaims for taxes are within the Tribunal’s jurisdiction.

VAUGHAN v. WEIGHPACK LTD.

February 5, 1974 Industrial Relations — Unfair dismissal — Compensation — Calculation of wage loss — Employment on three months' notice — Summary dismissal — Tribunal's award for wage loss less than three months' notice — Whether correct — Whether employee entitled to compensation for manner of dismissal.

Australia's Second Arbitration Act

One of the features that has distinguished industrial relations in Australia from those of other countries in the twentieth century has been the legally binding awards of industrial tribunals. These have occupied the place of collective bargaining elsewhere and the Australian peculiarity has usually been traced back to the great strikes and the defeat of the unions in the 1890s.1 Nevertheless, the events leading up to B. R. Wise's very successful arbitration act of 1901 have received only cursory consideration. The New South Wales Trade Disputes Conciliation and Arbitration Act of 1892, which followed by three months Victoria's Councils of Conciliation Act of 1891, was the second such measure to be passed by any Australasian colony and as a pioneer ing and useful experiment should not be dismissed merely (in the words of William Pember Reeves) as 'an amiable and nicely drafted measure' and 'a not inexpensive piece of waste paper'.2 One line of Labour historians has seen conciliation and arbitration as a Labour achievement. George Black wrongly included it among the planks of the Labor Electoral League platform of 1891 which Henry Parkes promised to implement and he considered J. H. Cann's amendment bill of 1893 to be a Labor party bill, although in fact eight Labor members voted against it.3 L. G. Churchward asserts that the Labor parties provided the main drive for compulsory arbitration in the 'nineties,4 but it should be pointed out that not until 1898 did Labour as a whole press for compulsory awards. The other line of Labour thinking is exemplified by Brian Fitzpatrick who saw that, 'the arbitration system was of the masters' making, not the men's', and that the acts of 1892 and 1901 'were not Labor measures, nor did they necessarily owe much to the Labor Party'. Here the word 'necessarily' converts a precise into an unclear statement, and Fitzpatrick's account shifts uneasily between a denial of Labour paternity for the acts and an admission that Labour pressed for and influenced the legislation. Fitzpatrick did not distinguish between Labour's attitude to voluntary conciliation and to compulsory arbitration and he gave an erroneous account of the act of 1892 which later historians have repeated.5 In seeking the origin of the arbitration system in Australia almost infinite regression is possible. English practice and precedent came

Crawford et al. v. Secretary-General of the United Nations.

International Organizations — Officials — Reimbursement to Judgment Creditors of Income Tax on Indemnities Awarded by United Nations Administrative Tribunal — Deduction of Notice and Termination Indemnities from Tribunal Awards of Compensation and Arrears of Salary.Arbitration — Award — Interpretation of — United Nations Administrative Tribunal.International Organizations — United Nations — Administrative Tribunal — Competence to Interpret Earlier Judgments — Interpretation in Respect of Undecided Points — Reimbursement to Judgment Creditors of Income Tax on Indemnities Awarded by Tribunal — Deduction of Notice and Termination Indemnities from Tribunal Awards of Compensation and Arrears of Salary.

American and British Claims Arbitration Tribunal Award in the Matter of the Eastry

American and British Claims Arbitration Tribunal Award in the Matter of the Eastry