arbitration, and should broadly be allowed to get on with it, even if that means, for example, spending more than seems proportionate or making a claimant stump up all the tribunal’s fees. These reservations are not necessarily misconceived. It is, however, important to weigh against them the fact that it may be of significant value to a party deciding how much to spend on a particular issue, as well as informing its broader resolution strategy (vaut le détour or even le voyage?) for: • The parties to exchange information about their respective budgets; and • The tribunal to give early indications, even if non-binding, about the type and amount of costs awards that it might be prepared to make. For example, is the costs award likely to be ‘winner takes all’ or prepared on an issue-by-issue basis? Will any notion of proportionality affect the amount of the costs award(s)? On a slight tangent, much ink has been spilt (including by this writer) on whether a party’s use of third party funding or litigation finance in the broader sense should affect a tribunal’s decision as to whether to order a claimant to provide security for a respondent’s costs. This is not the place to rehearse those arguments yet again (sighs of relief all round, no doubt). It is certainly the case, though, that if a claimant who might be thought to be impecunious were to volunteer information about its financial position and ability to meet an adverse costs award, it might avoid the potential delays and loss of the tribunal’s goodwill involved in resisting an application. Of course, whether or not that is the most attractive course of action will depend on a number of factors, including the likelihood and economic implications of being ordered to, say, post a bond. There is nothing objectionable about this; it is a commercial risk assessment. Counterparties can make investigations if they see fit and draw matters to the tribunal’s attention, and in the absence of disclosure, tribunals should feel empowered to draw inferences and make appropriate orders. Finally, to keep this response brief, there is a trend towards tribunals being expressly empowered to dispose of cases or issues summarily where appropriate. This power, used reasonably but robustly and supported by institutions and national courts where it is used appropriately, would seem likely to have a much more immediate and direct impact on cost rationalisation than a duty of disclosure. It will be interesting to see how this debate develops.
Matthew Knowles Partner, International Arbitration
Matthew has deep experience in international dispute resolution across many forums. Drawing on insights from senior roles in-house and in third party funding, he combines analytical and strategic excellence with project design and costs management expertise to provide his clients with outcome-focused advice.