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Fee Shifting In Investor-State Arbitration: Doctrine And Policy Justifying Application Of The English Rule, David P. Riesenberg

Duke Law Journal

In investor-state arbitration, tribunals can and should apply the English rule on legal costs and abandon the two alternatives, the American rule and the pro-claimant rule. Under the English rule, the unsuccessful party in a dispute must indemnify the prevailing party for the costs of dispute resolution. Both doctrine and public policy support the application of the English rule, particularly in light of the much-publicized backlash against the investor-state arbitration system. Most importantly, the English rule would help to mitigate the two most commonly identified causes of the backlash the system's alleged proinvestor bias and its chilling effect on host …