The general rule in international commercial arbitration is that costs, including attorney fees, “follow the event,” so if design professionals want to ensure that each side will be required to pay its own costs, you should be specific about this in your contract.
Can arbitration pursuant to the contract be consolidated with related arbitrations under other contracts? Unless all of the parties have agreed to consolidation, the courts in nearly every major jurisdiction consider themselves to be without power to order consolidation of arbitrations that arise under separate contracts. The Netherlands, by statute, is an exception to this rule, as are Massachusetts and Florida, in different ways. Article 1046 of the Netherlands Arbitration Act does provide for consolidation of arbitrations with "connected" subject matters, as well as a mechanism (application to the President of the Amsterdam District Court) to effect same.
Under the rules of the China International Economic and Trade Arbitration Commission (CIETAC), a claim and counterclaim arising from the same contract may be subject to two separate arbitrations over the objection of one party. To avoid this outcome, the parties should state that any arbitrations under the CIETAC rules shall consolidate into one arbitration all claims and counterclaims arising from the same contract.
Should the parties be required to negotiate, or to attempt mediation or another form of ADR, before commencing arbitration? Occasionally an arbitration clause may require a good faith effort to settle a dispute by agreement through mediation or some other form of Alternative Dispute Resolution before an arbitration can be commenced. Such a provision may or may not be helpful when a dispute arises and it may create an obstacle to resolution and increase the carrying costs of the contract. Some disputes may not be ripe for ADR at the outset. The parties are always free at any time to agree to try to resolve their dispute through negotiation or mediation.
Do the arbitrators have to possess any special qualifications? Generally, the rules permit the parties to prescribe qualifications for arbitrators. Sometimes parties require arbitrators to have certain technical expertise. Expertise as an arbitrator is generally the most important qualification. If your contract contains language with excessive demands or vague statements regarding the arbitrators’ qualifications could invite an attempt to have arbitrators declared disqualified.
Will there be an oral hearing? Yes, under all rules, if either party wants one.
Will witnesses be subject to cross-examination? Cross examination, whereby the opposing party’s attorney questions the party’s witness, is the general practice in common law jurisdictions, such as the United States and the United Kingdom. In Civil Law jurisdictions, lawyers used to be less familiar with cross examination; by incorporating the IBA rules on the Taking of Evidence in International Commercial Arbitration the A/E will ensure he or she has the right to question the witnesses who testify for the claimant.
Can the arbitrators appoint experts of their own choosing to advise them? Most rules permit arbitrators to appoint their own experts. The parties may see the experts’ reports and question the experts at the hearing. Parties who wish to avoid the appointment of experts by the tribunal are free to accomplish this through appropriate language in their arbitration clause.
Will arbitral proceedings and awards be confidential? Generally, yes — but check the rules to be sure. Where the rules are silent or incomplete, the parties may wish to agree expressly in their contract regarding confidentiality of the proceedings and awards.
Must the award include a statement of reasons? Generally, yes, unless the parties otherwise agree.
How will the arbitrators’ fees be determined? Under certain institutional rules, like the ICC, the fees are a fixed percentage of the amounts claimed. Other institutions, like the LCIA, permit the arbitrators to fix their own fees within a range of £150 to £350 per hour subject to LCIA review and approval. If the rules are silent, and if the parties do not otherwise agree, the arbitrators will fix their own fees.