INTRODUCTION

Those technically qualified to graduate (or to receive postgraduate degrees), and now proposing to gain their degree, are unable to receive their degrees in the University of Cambridge unless they have paid their university and college bills. A Rite of Passage is thus subject to a prior Right to Payment. On a similar basis, the arbitral tribunal can withhold the award if they have not yet been paid in full for their fees and expenses.

Here there are two matters, (i) the question whether the arbitrator (or tribunal) is entitled to fees and expenses, or entitled to keep payments made in respect of these and (ii) the question of payment of costs as between the parties to the reference. These will be examined in turn.

ARBITRAL TRIBUNAL's FEES

The court can determine a dispute over fees and expenses. It would not seem to matter whether the fees have yet to be paid or whether they have already been paid, because the criterion to determine whether they are ‘excessive’ should apply uniformly. This appears to be the judicial approach, even though the criteria are only set out in connection with the second context.

In a case where the fees had been paid in order to obtain the award (this is the usual case), in Hussmann (Europe) Ltd v. Al Ameen Development & Trade Co (2000), Thomas J examined closely the fees submitted by a tribunal and held that they were not excessive, although the number of hours spent was surprisingly high and the fee claim was, therefore, borderline. It might be significant that the chairman in this case was a judge who had been permitted to act gratuitously, although his ‘fee’ would be paid to the Treasury. There was certainly no suggestion that the hours claimed had not genuinely been worked.

In United Tyre Co Ltd v. Born (2004) the Court of Appeal considered a preliminary issue concerning delay in the bringing of an application under section 28(3) for adjustment of a fee. Again in this case (as is usual) the fee had already been paid in order to obtain the award. The fee greatly exceeded the value of the claim and the number of hours claimed, in addition to secretarial hours, was surprisingly high.