Washington and Lee law professor Susan Franck will present her research on rationalizing investment treaty arbitration costs at an event sponsored by the French Commission on Arbitration. Her presentation is scheduled for June 4 in Paris.
The costs of investment treaty arbitrations—including the costs of lawyers for both sides as well as administrative and tribunal expenses—can be substantial. Prof. Franck's research indicates even partial costs could represent more than 10% of an average award. Her research also suggests a lack of certainty about total costs, which parties had ultimate liability for costs, and the justification for those cost decisions.
Such a combination of variability and convergence threatens to disrupt the value of arbitration for investors and states. In light of the data, Prof. Franck recommends implementing measures to require arbitrators to consider specific factors when making cost decisions and to obligate investors to particularize their claimed damages at an early stage.
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