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Applications for attorneys’ fees

Saturday, April 26, 2025 8:51 AM | Anonymous

Appealing Attorneys Fees ...

What should arbitrators do regarding applications for attorneys’ fees: take submissions at the same time they are deciding the merits or issue a partial award on the merits and take the fee application afterwards? Should an arbitrator award attorneys’ fees as sanctions?

What are your thoughts?


Comments

  • Saturday, April 26, 2025 9:13 AM | Alan Pralgever
    Unless Attorney fees are provided for buying statute, court rule or agreement between the parties I do not believe Attorney’s fees should be awarded in an arbitration or otherwise
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  • Saturday, April 26, 2025 9:13 AM | Lawrence Berger
    Fee applications should be taken after the evidentiary hearing, but can be decided at the same time as the merits. As for attorneys fees as “sanctions,” I think an Arbitrator could order payment of attorneys fees for failing to provide discovery, etc., but I don’t know of any authority for more than that.
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    • Saturday, April 26, 2025 9:19 AM | Jeff Reynolds
      i, too, hear the case on the merits first. If I find for the claimant and if attorneys’ fees are in play, then I issue an Interim Award. I give the claimant 7 days to submit sworn proof as to her claimed fees/expenses, then I give the respondent 7 days to object. Then, I issue my final Award.


      I am very reluctant to sanction lawyers and almost never do it. The malfeasance has to be extreme.
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  • Saturday, April 26, 2025 9:19 AM | Thomas P. Valenti
    Q 1. Fee awaard timing. Good practice would suggesst addressing the merits first with a "partial award" and then taking submissions on attorneys' fees afterward, if necessary. If attorneys’ fees are to be awarded, this can occur if all parties requested it, or it is authorized by applicable law or by the arbitration agreement​. The practice of separating merits and fees helps avoid unnecessary delay in resolving the substantive dispute and allows more tailored briefing on the fee issues.

    At the end of the hearing, if both sides request fees, it's advisable for the arbitrator to have that stipulation reduced to writing, allowing a clean process for post-merits submissions​.


    Q 2. Fees as sanctions?

    Generally, no, unless:

    The applicable law or the arbitration agreement specifically authorizes an award of attorneys' fees as a sanction.

    All parties have requested attorneys’ fees.

    The rules governing the arbitration (e.g., AAA Commercial Arbitration Rules) permit such an award​.

    Arbitrators are cautioned to stay within the bounds of their authority, because exceeding authority (for example, by awarding sanctions fees without a proper legal or contractual basis) could expose the award to vacatur​.

    If sanctions are needed, it is cleaner and safer for an arbitrator to impose them in ways clearly authorized by the applicable arbitration rules, such as controlling discovery abuses, scheduling, or procedural defaults — and only award attorneys' fees specifically if permitted.
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    • Monday, April 28, 2025 11:41 AM | Montoya
      I am in agreement with the above post. An award for an alleged discovery violation should be awarded only under the most compelling circumstances.
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  • Saturday, April 26, 2025 9:25 AM | Hon. Deanne Wilson
    I have never awarded Attorneys' fees as a sanction; but one should "never say never." Many arb clauses are now beginning to say that fees should be awarded in certain circumstances as a sanction; but I have yet to do it. As far as a fee award for the prevailing party, I do not require that fee application certifications be submitted in advance of when the parties know who is the prevailing party. In a large case, it could involve many essentially wasted hours for the non-prevailing party. That requires the dreaded Partial Final Award situation; but I think it is the more fair resolution of the issue.
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  • Saturday, April 26, 2025 9:30 AM | Beverly Hodgson
    Preparing fee applications is expensive so best to leave them to a post- merits phase
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  • Saturday, April 26, 2025 9:35 AM | Geoffrey BH
    It is hard to see how an Arbitrator could intervene in setting attorney's fees he may determine a Party's costs in the arbitration and that may mean taxing costs by reference to attorneys fees. Whether or not an attorney is exorbitant, the costs allowed will be appropriate to the issues. No loser should suffer just because his opponent chose pricey Counsel.!
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    • Saturday, April 26, 2025 9:44 AM | Geoffrey BH
      An arbitrator is not, repeat not a Judge. By what right mat she/he impose sanctions save where additional costs are incurred by a counterparty?
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      • Saturday, April 26, 2025 2:51 PM | Mel Simburg
        AAA Commercial Rule 60 addresses sanctions. It does not mention monetary sanctions. In my experience, monetary sanctions have been considered outside an arbitrator's authority unless specifically granted by the applicable rules.
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  • Saturday, April 26, 2025 9:35 AM | Georges Affaki
    In international arbitration, whether commercial or treaty-based, I would expect the parties to ask for their arbitration and legal costs to be granted as part of the relief sought. While cost submissions are generally made after the post-hearing briefs are filed, parties now increasingly ask for a cost order after a failed application which prompted unnecessary time and costs (bifurcation, early determination, etc.). This is generally dealt with in an order. The exception is where a party does not pay its share of the advance on costs. The substituting party having paid instead of the defaulting party can then seek a partial award to recover the advance it made.
    Sanctioning counsel misconduct through fees? wouldn't we be in effect sanctioning the client? The IBA Guidelines provide other more targeted means of sanctioning counsel misconduct.
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  • Saturday, April 26, 2025 10:06 AM | David Allgeyer
    I and the panels I have been on typically decide whether an award of fees is in order based on the arbitration clause. If so, an interim award is provided awarding fees, followed by a final award quantifying the fees after proof of fees by the party awarded fees and a response to that submission. Some arbitrators have told me they like to get fee submissions from both sides to help gauge the reasonableness of the winning party’s fee request. If the other side seeks a fee award as large or larger, that provides some evidence the prevailing party’s request is reasonable. But that adds expense that I do not think is justified by the benefit.

    I have, fortunately, never had attorneys or parties who misbehaved enough to warrant fees as sanctions. But, depending on the arbitration clause and applicable law, I wouldn’t dismiss the possibility out of hand in the right case.
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  • Saturday, April 26, 2025 10:22 AM | Jack Marshall, KC
    I prefer asking for counsel to deal with fees in their post hearing briefs. I don’t want their invoices at that stage, but want them to indicate whether they are seeking costs (they always are) and the basis upon which costs should be awarded. Generally both sides want full indemnity costs, which leaves the Tribunal wide wide discretion in awarding costs, should they be unable to reach an agreement after receiving the Award.
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  • Saturday, April 26, 2025 10:42 AM | Guy W. Bluff
    One goal of arbitration is to provide an efficient and lower cost dispute resolution process than litigation. Havign both parties submit their fee applications prior to making a determination of the prevailing party is a wasted additional expense to at least one party (typically). Make the merits decision first, make a determination as to which party, if any, is the prevailing party, and then provide clear instructions as to the type of fees, costs, reallocation of Filing Fees or Arbitrator Compensation that will be considered as part of the final award.
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  • Saturday, April 26, 2025 10:45 AM | Nasri H Barakat
    The first thing to do is to make sure the Panel can award attorney fees. A good place to start is to review the governing arbitration clause. Generally a preliminary award is issued and in it the Panel requests a breakdown of the attorney fees in order to deal with the issue after the preliminary award. Even if the arbitration clause is silent on attorney fees, if both parties request it as a relief then the panel can decide whether or not to award it. It may not be labeled as a penalty or a sanction but it is generally awarded when one party has, in the opinion of the panel, abused the process such as filing frivolous motions, not settling when the evidence is clear that continuing with the prosecution of the case is not sustainable or obstructs the discovery process etc.
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  • Saturday, April 26, 2025 10:48 AM | Dennis Estis
    One should always make certain that sufficient funds have been received from the parties involved to cover the arbitrator's fees before commencing preparation of your award and issuing your opinion.
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  • Saturday, April 26, 2025 11:08 AM | Sam Barakat
    An interim or partial award is preferred, allowing the prevailing party the opportunity to prepare a candid and honest submission for costs. I also believe that, in certain circumstances, awarding costs as a sanction is appropriate and serves as an important tool to manage dilatory tactics and discourage parties from acting in bad faith.
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  • Saturday, April 26, 2025 12:12 PM | George M. Lobman
    Over the last 30 + years I have had many opportunities to award Attorney Fees to punish the Claimant or Respondent's representative. At times you just know an attorney is dragging along to build up payables, or is aware they have files an Arbitration, knowing they have little or no case! However, that is not a proper method of addressing frustration or displeasure. Attorney fees can be awarded if asked for in the filing and granting them as a result of a mutually defended client by the parties.
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  • Saturday, April 26, 2025 12:25 PM | Anonymous
    Where it will be clear that there will be a prevailing party, when taking final merits submissions, I ask for costs submissions at the same time. This prevents delay in issuance of the final award. With both sides disclosing the amounts of their costs (which will usually be similar), the argument of excessive counsel fees often goes away.

    Arbitrators have authority (at least in the Second Circuit) to award counsel fees as a sanction (against a party, not the party's counsel). ReliaStar Life Ins. Co. of New York v. EMC Nat'l Life Co., 564 F.3d 81 (2d. Cir. 2009). I've never done it but I have seen some of my tribunal chairs threaten sanctions to get counsel to behave.
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    • Saturday, April 26, 2025 12:40 PM | Jim Burgess
      This is a good answer. I usually defer fees issues to a second phase if I need to make a prevailing party determination or if the case is complex. If it is a simple case where only claimant can claim fees, it often is more efficient to have fees submitted at the time of the hearing. Efficiency is the goal. Most parties prefer an interim award and to handle fees after. I raise this at the preliminary hearing so we are all on the same page on what is efficient. I have nothing to add on sanctions. This answer is correct it seems to me.
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      • Saturday, April 26, 2025 12:48 PM | Steve Skulnik
        Completely agree.
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  • Saturday, April 26, 2025 1:12 PM | Patricia Kerrigan
    I'm with those who issue a partial award and, if the liability findings support an award of fees under applicable law, then I will hear or accept submitted evidence on the fee issue. I present an option to the lawyers to go with a partial award and then fees by hearing or submission and I don't think they have ever preferred to do fee evidence before knowing whether the time and cost of that work has any value to the client. It just seems to be the more efficient and economic approach.
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  • Saturday, April 26, 2025 1:20 PM | Gerald Baldwin
    The first thing that I do is to carefully review the arbitration provision to determine what it says about attorneys' fees. If allowed, I prefer to add a provision in the Scheduling Order stating that, if after the merits hearing, I believe that attorneys' fees are warranted, I will issue an interim award giving the prevailing party one week to document fees incurred. Never use attorneys' fees as sanctions, myself.
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  • Saturday, April 26, 2025 1:29 PM | Bill Tucker
    I believe the arbitrator should issue an Interim Award determining who the prevailing party is and then set a briefing schedule for that party to move for an award of attorney's fees. It will not prolong the case for more than a few weeks and will not require one of the parties to waste its time producing evidence of the fees to which it will not be entitled.
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  • Saturday, April 26, 2025 1:38 PM | Delton Henderson
    I prefer to issue an interim award as to liability and then allow the prevailing party to brief fees and costs to the extent the law allows. This has been very helpful in controlling the efficiency goals of arbitration as the parties and the arbitrator are not allowed to extend the deadline for an arbitrator to issue the final award. Further, I have found it effective to announce this practice during the preliminary case management hearing to promote discussions between the disputants and or their counsel. However, I do not subscribe to the use of attorney's fees as a punishment (i.e., as sanctions) as a general rule.
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  • Saturday, April 26, 2025 2:03 PM | Bob O'Brien
    If an award of attorney's fees is in play by statute, contract or otherwise, I typically issue a partial final award and request further submissions on the issue of attorney's fees. By that point, counsel will have recorded time for the hearings and the preparation of post-hearing briefs.
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  • Saturday, April 26, 2025 2:05 PM | Joan Secofsky
    I never take submissions simultaneously with a decision on the merits because it causes counsel to spend client's money potentially needlessly. Only if I've decided to award attorneys' fees and the only issue is the amount, I have the parties brief only the issue of the amount after a merits award.
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  • Saturday, April 26, 2025 3:32 PM | Neil Kaplan KC
    In international cases the practice now is to invite both sides to exchange costs schedules when the award is nearly ready. It is important to get both sides schedules BEFORE they know the result. After exchange of schedules they can be permitted a short comment on opponents schedule. I accept that in some cases where the result may not be clearly in one sides favour you might need submissions as to how to exercise your discretion. The award can then be Final save as to costs and you late do a Costs Award. The thing to watch for is when the claiming party seeks to claim the time for in house staff especially counsel. This needs careful proof which usually lacking. Also be aware of overlawering. But if both do it can it be said to be unreasonable in the context of that case..
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    • Saturday, April 26, 2025 6:57 PM | Steve Skulnik
      Exactly right.
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  • Saturday, April 26, 2025 3:32 PM | David E. Robbins
    Before taking into evidence affidavits for attorney's fees shortly after the close of the hearings, arbitrators must determine if they have the authority either by contract (the arbitration agreement - to the prevailing party) or by law (when both parties request it in the pleadings or if the bad faith exception applies). That exception enables arbitrators to impose attorney's fees as a sanction for particularly offensive attorney or party misconduct, either in discovery, failure to comply with arbitrator orders or perjury during the hearing. Courts will deny petitions to vacate such awards for attorney's fees.
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  • Saturday, April 26, 2025 3:51 PM | David Slaughter
    A large majority of the disputes presented to me as an arbitrator are contract disputes with provisions allowing attorneys fees to the prevailing party. I generally include in my preliminary hearing/scheduling order a provision postponing a consideration of any fee application until after the award, entered as an interim and partial award, pending consideration of the fee application.
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  • Saturday, April 26, 2025 3:58 PM | Mark Brancato
    I'll address the question in reverse. I see no problem awarding attorneys' fees as sanctions, provided that the conduct is sufficiently egregious. As for when submissions for fees should be requested, a partial award should be issued. The record should then be re-opened for submission of a fee application and any objections that the opposing party may have. Objections may require an evidentiary hearing on the application and/or oral argument.
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  • Saturday, April 26, 2025 5:30 PM | John Delikanakis, Snell & Wilmer
    I think the better practice is to make an interim award, then ask the parties for briefing on attorneys' fees and costs if there is a contractual, rule, or statutory basis for attorneys' fees and costs. It would be a very, very rare case where I would consider an award of attorneys' fees and costs as a sanction. Near nonexistent.
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  • Saturday, April 26, 2025 7:17 PM | GARY W JAVORE
    While it would make economic sense to issue an interim award, having affidavits from both sides, assists me in evaluating the reasonableness of the time spent by each side. On the issue of sanctions, I generally reserve that decision for the final Award.
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  • Saturday, April 26, 2025 9:56 PM | Mark J. Bunim
    If the parties' arbitration contract calls for the prevailing party to be awarded attorneys' fees or if the parties seek attorneys' fees in both Claimant's Demand for Arbitration and Respondent's Answer, then I would award attorneys' fees ( but not sanctions). It is sometimes difficult to determine who is the "prevailing party" and when each side has prevailed on some claims (and counterclaims) but not others, a weighing of outcome needs to take place. In such situations I have given each side a percentage of their requested attorneys' fees and netted out an amount. It is a cumbersome process, but I feel necessary based on who prevailed on which issues and how significant each such issue was to the ultimate outcome. Where attorneys' fee are in play, and there is clearly one prevailing party, I usually issue a partial final award and bifurcate attorneys' fees and costs to a later proceeding, since it makes no sense to have the non-prevailing party prepare a fee application. In New York, one must be cognizant of the NY Court of Appeals ruling in AISLIC v. Allied Capital, 35 NY 3d 64 (2020), which holds that a partial final award is not functus officio unless the parties agree beforehand that it will be. Without such an agreement the non-prevailing party could seek to reargue the entire award. I always request that parties agree that the partial-final will be binding as to all points addressed.
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  • Saturday, April 26, 2025 11:07 PM | Dennis Bolazina
    After decision on the merits.
    On point two, I have had occasion to consider, but if the sanctions are mid-term in the process, I am wondering if such a decision should be relegated to another arbitrator, as is done for consideration of additional parties. I am trying to avoid a perceived bias or taint, if the sanction is issued early against a party
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  • Saturday, April 26, 2025 11:10 PM | Hon. Alvin Zimmerman
    It depends on the case and if one or the other makes sense. In a really complex case of many days of duration, if I believe attorneys fees will be highly contested and I believe there is a need for briefing, experts needed etc. these factors may lead me to believe a partial award and later hearing and decision is appropriate. I always confer with the attorneys and see what they prefer and that is one of the factors I consider.
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  • Saturday, April 26, 2025 11:13 PM | Charles Barr
    recommend an interim award followed by a final award incorporating same and ruling on the fee issue. Whether the fee-shifting provision is unilateral or bilateral, combining it with the merits risks unnecessary work for someone. Work entails cost, whether the client pays it, the attorney absorbs it, or a combination of both.

    I’ve never used attorneys’ fees as a sanction. Rule 11, Fed.R.Civ.P., was revamped some years ago to reduce that practice, thereby messaging that it is disfavored. Nonetheless, it may be appropriate in an egregious case.
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  • Saturday, April 26, 2025 11:17 PM | Greg Cashion
    Take submissions at the close of the hearing. Attorney fees should not be a sanction (although it may feel like one).
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  • Saturday, April 26, 2025 11:25 PM | Anonymous
    I prefer issuing a partial award on the merits and take the fee application afterwards. In this scenario, the non-prevailing party does not waste time and resources accounting for its attorney fees which is a needless expense for that party. If a party has been particularly obstreperous or objectionable during the course of the arbitration, their tactics have automatically increased the costs of the opposing party. Compensation to a prevailing party for having to slog through such tactics is likely to be equitable, as such though, such compensation could be viewed as punitive to the party that has been difficult.
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  • Sunday, April 27, 2025 9:25 AM | Igor Ellyn, Toronto, Canada
    In Canada, "costs" amounting to rough assessment of lawyers' fees paid and the abitration feess are typically paid to the successful party. Where success is divided, the arbitrator should typically refuse to award costs. Sometimes costs award are more nuanced, such as when the parties succeed on diffierent issues. I invite counsel to try to agree on costs but it they can't to submit brief argument and a summary of their costs claim in writing within, say, 15 days after the award on the merits.
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  • Sunday, April 27, 2025 12:14 PM | Anonymous
    Issue a partial award on the merits and take the fee application afterwards. Here's a quote from a Florida case applauding the practice.
    Section 713.29 fees may properly be taxed after the entry of a final judgment in a lien foreclosure [**6] action. See NCN Elec., Inc. v. Leto, 498 So. 2d 1377 (Fla. 2d DCA 1986). This rule makes [*657] practical sense. Only the prevailing party is entitled to fees under section 713.29. The court's determination of attorney's fees after the lien foreclosure judgment avoids the necessity of both sides presenting evidence on fees at the initial trial, which is an "efficient expenditure of judicial and litigant time, money and effort." NCN Elec., 498 So. 2d at 1378.
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  • Sunday, April 27, 2025 5:55 PM | Sigmund Schutz
    Regarding timing for fees submissions, I ask the parties for their preference. If they want to submit with their merits evidence (especially if a desk arbitration), then OK. If they prefer to wait and address after a merits decision, also OK. It may be efficient to do it either way depending on the circumstances.
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  • Sunday, April 27, 2025 8:04 PM | William M. Bankston
    Attorney fees are awarded to the prevailing party in Alaska by court rule and enhanced by statute. A significant body of law has evolved to determine who is the prevailing party. I award a partial award, have the parties submit briefs on the prevailing party or if I determine the prevailing party have them submit briefs for a final award. I award attorney fees for flagrant discovery violations.
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  • Monday, April 28, 2025 10:05 AM | Gary S Chilton
    I recently dissolved a TRO issued by a state court. A state statute authorized an award of attorney's fees in the event a court or arbitrator found the TRO should not have been entered. The prevailing party on that issue moved for an interim award of attorney's fees. I chose to defer ruling on their motion until after the full hearing on the merits of the case at which time, after hearing all the evidence, I'll rule on the motion.
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  • Monday, April 28, 2025 11:46 AM | J B Cross
    In my review of the other comments, I found some good ideas about ways to handle attorney fees. I try always to caution lawyers at the outset of the hearing that arbitration differs from state court practice in my state, which calls for a post-trial petition for fees. At the close of the hearing, I try to have the parties submit an affidavit of the fees and indicate to them that I will not read either affidavit until I have decided on the award. If an award of fees is justified, I will then review the affidavit of the prevailing party. I got this from an older arbitrator who in a pre-digital age asked for fee petitions in a sealed envelope only to be opened if an award of fees became relevant.
    On the issue of sanctions, I agree with some of the others it is not something I would never do, but it is hard to imagine a situation where attorney fees as a sanction would be appropriate.
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  • Monday, April 28, 2025 7:09 PM | Perry L Taylor
    Every case is different and the parties wishes should be taken into consideration. However, generally, issuing a partial award and taking submissions relating to fees after rendering the merits award is preferrable.
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    • Tuesday, April 29, 2025 4:35 PM | Art Woodward
      I issue an interim award (now a partial final award) which states, which, if any, part is deemed the prevailing party and provides a schedule for the parties to submit briefs regarding the amount, but not the entitlement, of the fees to be awarded.
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  • Wednesday, April 30, 2025 7:00 AM | Tarrant Lomax
    In most cases, I will first determine if fees are to be awarded. If not, the Award is a Final Award. If they are to be awarded, I issue an Interim Award, and allow for submission and objection.

    On a related note however, the Commercial (and other Rules) provides as follows:
    The award of the arbitrator may include:

    ii) an award of attorneys’ fees if all parties have requested such an award or it is authorized by law or the parties’ arbitration agreement.

    At times this leads to the argument that simply checking the box on the Demand brings attorney's fees into the discretion of the arbitrator, regardless of the law of the jurisdiction. I always follow the law of the jurisdiction and perhaps the Rule(s) on this subject should be revised to reflect that Arbitrator discretion in the award of attorney's fees must be consistent with the law of the jurisdiction.
    Just a thought
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  • Thursday, May 01, 2025 2:39 PM | Anonymous
    I ask counsel at the scheduling counsel if they object to submission of affidavits after the hearing on the issue of attorney's fees. I then include in the scheduling order the provision with the timing and that either party may object to that procedure within 10 days of the date of the order. I also ask the parties to confirm at the hearing that they do not object. The hearing does not close until all affidavits and any reply affidavits are filed.
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