Originally from Dispute Resolution Journal

Introduction: The Arbitrator’s Challenge

Arbitrators are often confronted with agreements allowing or requiring an award of attorneys’ fees to the “prevailing party.”1 Even when arbitration agreements are silent about attorneys’ fees, during the proceedings both sides often request them.

Statutes may allow arbitrators to award attorneys’ fees even when not authorized by the parties’ agreement or requested by the parties.2 Rules governing arbitrations usually expressly empower arbitrators to award attorneys’ fees. For example, AAA Commercial Arbitration Rules, R-47(d)(ii) allows the arbitrator to award attorneys’ fees “if all parties have requested such an award or it is authorized by law or their arbitration agreement.”3 UNCITRAL Arbitration Rules, Article 40 requires the arbitration tribunal to “fix the costs of arbitration in the final award” and defines “costs” to include “[t]he legal and other costs incurred by the parties in relation to the arbitration to the extent that the arbitral tribunal determines that the amount of such costs is reasonable.”4 Some rules allow the arbitrator to award attorneys’ fees even if not explicitly authorized by the parties’ agreement or requested by the parties.