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Respondent's Failure to Appear and Shifting Fees - What are your thoughts?

Is a Respondent's failure to appear in the proceeding, including at the evidentiary hearing, alone sufficient to warrant the shifting of all the provider's administrative fees (e.g., filing fees) to the Respondent, assuming the Claimant prevails on the merits of its claim(s)?

Please provide your thoughts/comments below.

Comments (3)

The question suggests the answer: Probably a failure to appear in the proceeding is insufficient to justify shifting the provider's administrative fees to the Respondent. The Claimant has availed itself of the forum and the provider's services, both of which have allowed the Claimant to prove its case, and receive an enforceable award. If the Respondent has attempted to frustrate or delay the process, that is a reason to shift administrative fees. If Respondent has done nothing to interfere with the smooth administration of the arbitration, but has just chosen not to appear - after, of course, adequate, abundant and provable notice - one might surmise that the Respondent has simply chosen to save time and costs in light of a result it must have deemed inevitable. And if that is all that Respondent did (or did not do), there is no cause to shift costs.
Judith Meyer

Judge Gerald Harris:

So long as the arbitrator adheres to the requirements that proper notice has been given to respondent and the claimant adduces proof of entitlement to a recovery, I would think the same tests would apply in determining whether an award of fees is appropriate as would apply in a contested proceeding.

It depends. Does the contract have a fee shifting provision? Is this an international case? Has the respondent acted in bad faith?

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