This HTML version is machine-generated. Always consult the original document.
IN ARBITRATION PURSUANT TO THE RULES OF ARBITRATION
OF THE UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW
WESTMORELAND COAL COMPANY
Claimant
vs.
GOVERNMENT OF CANADA,
Respondent
CLAIMANT'S COMMENTS ON RESPONDENT'S STATEMENT OF
COSTS
Lauren F. Friedman
Kevin D. Mohr
Cedric Soule
KING & SPALDING LLP
1185 Avenue of the Americas
34th Floor
New York, NY 10036
Tel: +1 212-556-2100
Counsel for Claimant
19 July 2024
[Page 1]
In accordance with the Tribunal’s email of July 12, 2024, Claimant hereby submits its observations on Respondent’s Statement of Costs.
Article 40 of the 2013 UNCITRAL Rules applicable to this arbitration limits recoverable costs to, in relevant part, “[t]he legal and other costs incurred by the parties in relation to the arbitration to the extent that the arbitral tribunal determines that the amount of such costs is reasonable.” Art. 40(2)(3) (emphasis added). Canada’s cost submission is insufficient since it does not allow the tribunal to determine (1) whether it reflects “costs incurred by [Canada] in relation to the arbitration”; or (2) “whether the amount of such costs is reasonable,” as required by Article 40(2)(3).
First, Canada has not confirmed that the CAD $1,437,780 in legal fees that Canada requests reflect “costs incurred by [Canada] in relation to the arbitration.” To the contrary, Canada explains that its costs submission is based upon an opaque and undefined “cost recovery” process calculated by the government. However, the “cost recovery” process does not appear to isolate the costs incurred by the government for its counsel on an hourly basis. To the extent that Canada wishes to recover those costs, it should at a minimum explain how the “cost recovery” calculation reflects the “costs incurred by [Canada] in relation to the arbitration” and is “reasonable” as required by Article 40(2)(3).
Second, Claimant notes that Canada claims CAD $104,899.87 in “Expert and Consultant” costs for Hughes Hubbard & Reed LLP. Canada did not submit an expert report in these proceedings, and it is unclear for what purpose Hughes Hubbard & Reed LLP’s services were engaged. For this reason, it is difficult to see how this expenditure “relat[es] to the arbitration” or is “reasonable” as required by the 2013 UNCITRAL Rules.
Moreover, despite the paucity of information provided, Canada’s requested costs are not “reasonable” as required by the 2013 UNCITRAL Rules because Canada spent more than twice as many hours on this case as Claimant’s counsel spent on the same phase of the case. According to Canada’s cost submission, it devoted 6,395 hours to its defense as of the date of the cost submission. Meanwhile, Claimant devoted 2,897 hours to its case as of the same date. Claimant is not aware of any circumstance that would require Canada to dedicate such a disproportionate amount of time on this case, particularly since Canada should have benefited from its institutional knowledge having already litigated this case opposite different counsel in the Westmoreland I case.
