Marc J. Goldstein is a New York Attorney whose practice includes advocacy before courts and arbitral tribunals, and service as an arbitrator and mediator. He has concentrated on international arbitration for more than two decades. He is the creator and author of the widely-read Arbitration Commentaries (http://arbblog.lexmarc.us), a member of the American Law Institute, and is on the arbitrator and mediator rosters of the AAA and its International Centre for Dispute Resolution (ICDR), among others. He is a Fellow of the College of Commercial Arbitrators and of the Chartered Institute of Arbitrators. For more information, please visit Mr. Goldstein’s website at: www.lexmarc.us.
It has become fashionable among international commercial arbitration lawyers to state that the allocation of costs in final awards has been, and remains, unpredictable, and that greater predictability would be useful to commercial arbitration users and their legal advisors.1 On this point there cannot be serious debate. The real question is, should arbitral tribunals change their ways, and if so what should they do differently, to achieve the desired greater predictability, while acting in a fashion that is consistent with other arbitral norms such as party autonomy, flexibility, impartiality, and efficiency?
While complaints about lack of predictability are legion, more difficult to come by are sound proposals to remedy the costs predictability "crisis." In that regard, the American practitioners Robert Smit and Tyler Robinson have moved the discussion a major step forward by proposing Guidelines for Awarding Costs in International Arbitration.2 Perhaps inspired by the Smit-Robinson article, the ICC Commission on Arbitration has recently formed a task force to study decisions on costs.