International Arbitration

Increasingly, risk transfer enquiries are being presented to us in the context of international arbitration. Such cases will often need insurance cover or Third Party Funding for own side’s lawyer’s fees and expenses in the event that the case is lost. A claim for expenses may specifically include the arbitrator’s fees. However, because the “loser pays” costs rule does not usually apply to international arbitrations, the risk of incurring liability for an opponent’s costs is not so common, although where this is a possibility, we can obtain insurance cover for the same.

We regularly receive enquiries in respect of international arbitrations from firms that are based abroad and for this reason we have experienced the issues that can exist with such applications. We have successfully explored all of these issues and innovate where new jurisdictions and arbitrations present more challenges.

In jurisdictions such as the US, there may be a contingency fee arrangement in place between the law firm and the client. In such circumstances, it may be that it is the firm, and not the client, that is applying for insurance to hedge their risk, or applying for funding in order to bridge their cash-flow.

We have been instructed by applicants heading towards Tribunals under investment protection treaties, as well as applicants arbitrating pursuant to a commercial arrangement.

The premiums are frequently deferred and contingent upon success in the same way that they are in most cases in this jurisdiction, albeit that it is safer to assume that the cost of the ATE insurance premium is not recoverable from the opponent.

What is more common still is the desire to insure against the costs of having to pay the arbitrator's fees.

To discuss your international arbitration case please contact Matthew Amey on 01903 23 22 55.

If you are ready to make an application please download an application form, click here.