The Costs of International Arbitration: Results of the CIArb Survey

7 Ноя

Королевский институт арбитров предпринял исследование стоимости международного арбитража. В опросе приняли участие 254 респондента, 71% из которых идентифицированы как представители сторон, 25% — члены судов и 4% не идентифицированы. Место арбитража в 28% случаев находится в Соединенном Королевстве, в 22% случаев — в Европе, 11% — в Азии, 7% — в Америке, остальные 32% — в других регионах. 2/3 случаев — это институционный арбитраж, 1/3 — ad hoc, причем многие арбитражи ad hoc — это администрируемые арбитражи, причем Международная торговая палата — наиболее популярный орган, который администрирует арбитраж. 74% расходов сторон было истрачено на внешних юристов, а 26% — на иные цели. Расходы истцов на 12% больше расходов ответчиков. Расходы на арбитраж в Соединенном Королевстве ниже на 10%, чем расходы в Европе. Средний срок длительности арбитражной процедуры — 17 — 20 месяцев.

The Chartered Institute of Arbitrators (CIArb) decided to take up the challenge of examining the costs of internatio-nal arbitration. In September 2011, CIArb came up with the results of the Costs of International Arbitration Survey which explores how and why costs are incurred at each stage of the arbitration process. Some of the most important num-bers and results of the survey are considered next.
Methodology
The survey consisted of ten questions with multiple subcate-gories designed to elicit respon-ses about the amounts parties claimed, the amounts arbitral tribunals awarded and the costs spent on various items. Information on 254 arbitrations conducted between 1991 and 2010 were considered to be useful for statistical analysis.
Survey participants at a glance
Out of 254 respondents who participated in the survey, 71% (180) of respondents described themselves as party repre-sentatives, 25% (64) as tribunal and members and the 4% (10) did not identify with either category.
Over 50% of respondents were from the UK (32%) and the rest from Europe (20%). The remaining 48% came from Asia, the Middle East, Africa, North America and other locations.
Where was the seat of arbitration?
The United Kingdom had 28% of the seats, followed by Euro-pe with 22%, Asia with 11%, North America with 7% and the remaining 32% with some other regions.
What type of Arbitration was it?
Nearly two out of every three arbitral proceedings were administered by an institution. The remainder were ad hoc. Of those which were institutionally administered, the ICC was the most popular choice, followed by the LCIA.
How much did they get?
Regardless of the nature of the dispute, the data indicates that 100% of those that claimed up to £ 1.000.000 received an award within this category. 62% of the parties claiming between £ 1.000.000 and £ 10.000.000 obtained an award within this range, in comparison with a 46% success rate for claims between £ 10.000.000 and £ 50.000.000. Additionally, 39% of survey participants claiming between £ 50.000.000 and £ 100.000.000 received an award within these limits, while 33% of participants claiming for £ 100.000.000 or more received an award for no less than this amount.
What did they spend it on?
74% of the party costs were spent on external legal costs (including where applicable barristers’ fees), with the remai-ning 26% spread across other headings. For example, out of a total expenditure of £ 1.000.000, the costs a party would incur might be distributed as follows: i) £ 740.000 for external fees; ii) £ 100.000 for experts‟ fees; iii) £ 80.000 for external expenses; iv) £ 50.000 for witness fees; v) £ 30.000 for mana-gement costs.
On the 74% of costs referred to external fees, parties spend 19% on the pre-commencement/commencement of the arbitration, 25% on the exchange of pleadings, 5% on disco-very, 14% on fact and expert witnesses and the remaining 37% on the hearing (before, during and after).
In addition to the party costs, common costs will also be incurred by both parties. 60% of these costs were spent on arbitral fees, with the remaining 40% divided amongst the cost of producing transcripts of the proceedings, hiring the hearing venue, paying certain arbitral expenses and cove-ring other miscellaneous costs.
Length of Arbitration
The average arbitration took between 17 and 20 months, depending on the nature of the dispute. While length may affect some of the common costs, it does not appear to have been a material factor with respect to arbitral fees.
Who Spends More?
Although similarities were observed between the allocation of party costs, survey data indicated that, regardless of the nature of the dispute or the amount claimed, a claimant spent more than a respondent. Overall, claimants spent approximately £ 1.580.000 while respondents spent an ave-rage of £ 1.413.000 a difference of nearly 12%. On the other hand, when the survey participants were asked how much was spent on experts, a noticeable difference appeared, with respondents outspending claimants by £ 330.000 to £ 213.000, or nearly 55%.
Costs: UK vs Europe
Irrespective of the nature of the dispute, a party‟s costs can vary depending on where the seat of arbitration is. The sur-vey assumed hearings took place at the seat. Survey data indicated that arbitration whose seat was in the UK were less costly than in the rest of Europe. Claimants‟ costs avera-ged approximately £ 1.540.000 in the UK, in comparison with £ 1.685.000 in Europe, a difference of nearly 10%.
Although barrister costs were higher in the UK (possibly due to the traditional separation of functions between solicitors and barristers) external legal fees were over 26% higher in Europe. Survey respondents similarly reported that the com-mon costs of arbitrations in Europe were over 18% higher than in the UK. In any event, given the small proportion of the population surveyed that reported such costs, these results should be interpreted with caution and may not be representative of international arbitration as a whole.
Common Law vs Civil Law
A comparison was made between the amounts parties spent on arbitral proceedings whose seats were in common and civil law countries. Regardless of the nature of the dis-pute, survey participants reported that arbitrations with seats in common law countries were less costly than in civil law countries for both claimants and respondents. Party costs averaged approximately £ 1.348.000 in common law countries and £ 1.521.000 in civil law countries, a difference of nearly 13%.
External legal costs, external expenses and witnesses were significantly more expensive in arbitrations with the seat in a civil law country. In common law arbitrations, however, bar-rister fees, experts and managements costs were higher than in civil law countries.
Comments
In accordance to the Survey, the majority of the costs incur-red by a party are within its own control. In addition, it ap-pears that a party‟s expenditure is mostly on its legal team, not on experts, documents or witnesses. How can the cost of arbitration be reduced? Is this mainly responsibility of the party involved? Is there any responsibility from the external legal advisors?
The length of arbitration must also be of concern. Interna-tional arbitration must be an efficient and cost effective process for everyone involved. How can the time of arbitra-tion be reduced? How could the parties and their legal teams contribute to shorten the length of the proceedings?
Why is Europe more costly than UK? What about the costs of international investment arbitration? This survey produced an important amount of information which should pave the way for further investigations. The arbitration community should address all these questions and recognize the impor-tance of the effort done by CIArb with this first survey on the costs of arbitration which is wor-thy of study and discussion.
The CIArb Costs of International Arbitration Survey 2011 is availa-ble at: http://www.ciarb.org/conferences/costs/2011/09/28/CIArb%20costs%20of%20International%20Arbitration%20Survey%202011.pdf
Автор: Ricardo Molano
Источник: AIA Association for International Arbitration (administration@arbitration-adr.org)