Flexibility is often perceived as one of the key advantages of international arbitration over litigation, potentially providing a speedier and cheaper dispute resolution process. The expenses parties incur in preparing for arbitration and then presenting their case make up the lion’s share of arbitration costs. Therefore, solutions to managing time and costs in arbitration should address these aspects of the arbitration process. This article provides cost-saving suggestions that revolve around three ideas: empower the parties to negotiate or mediate, give the arbitrators the power to proactively manage the arbitration, and, when a dispute arises, act early to assess the case. Some of these suggestions, perhaps more than one might think, may apply to arbitrations where the parties intend to leave no stone unturned in “bet-the-company” and other high-stakes disputes.
I. Cost-Saving Drafting Tips
Arbitration agreements can be drafted to achieve time and cost-saving goals. It makes sense to think about this before disputes arise and the parties’ positions become hardened.
A. Provide for Executive Negotiations and Mediation
One option that can be considered is providing for the possibility (if not the necessity) of negotiations between senior executives familiar with the issues to discuss a resolution of the dispute.