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Arbitration CostsMyths and Realities in Investment Treaty Arbitration$
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Susan D. Franck

Print publication date: 2019

Print ISBN-13: 9780190054434

Published to Oxford Scholarship Online: April 2019

DOI: 10.1093/oso/9780190054434.001.0001

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The Evolution of Cost Rationalization—Explaining Cost Assessments

The Evolution of Cost Rationalization—Explaining Cost Assessments

(p.231) 7 The Evolution of Cost Rationalization—Explaining Cost Assessments
Arbitration Costs

Susan D. Franck

Oxford University Press

Earlier research identified that, although tribunals rarely cited legal authority and provided only minimal rationalization of their decisions, like the factor-dependent model, tribunals’ approaches varied. To facilitate an evidence-based dialogue about whether those findings persisted, Chapter 7 explores tribunals’ rationalization of cost decisions. It first assesses how many awards contained any rationalization for costs and identifies material gaps between non-final and final awards. Second, it conducts content analysis of tribunals’ costs rationalizations. Third, it explores whether tribunals’ ability to explain their cost decisions changed over time. While there was some evidence that tribunals improved in their cost rationalization, material gaps remained. Tribunals tended to focus upon parties’ relative success, perceived equity and reasonableness, and tribunal discretion, with part conduct during proceedings being of secondary consideration. Meanwhile, concerns involving public justice norms were rarely, if ever, used.

Keywords:   cost assessments, parties’ legal costs, pay-your-own-way, loser-pays, factor-dependent, rationalization legal authority, legal rationale, outcome-related, non-final award, final award

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