Author: Guillaume FELD
N0:3 of 2021
Over the past twenty years, users have repeatedly criticised the inflation of the delays and costs of international commercial arbitration. Indeed, the frequent lengthening of the duration of the arbitration procedure, usually without effect on the arbitration centres’ administrative expenses and the arbitrators’ fees, directly impact the parties’ costs incurred by users in anticipation, and during, the arbitration procedure (for example, counsels’, consultants’ and/or experts’ professional fees). From users’ perspective, the inflation of the delays and costs of international commercial arbitration is an « exogen phenomenon » which arbitration centres and arbitrators should properly address. These reproaches have caused international arbitration institutions to implement numerous innovations, mostly through the regular updating of their arbitration rules. These rebukes have similarly caused some practitioners to make various suggestions, primarily aimed at arbitration centres and arbitrators. However, a careful assessment of the root causes of the excesses exposed points to an “endogen phenomenon” essentially triggered by the users’ own behaviours. In this respect, contract management offers various levers to the parties, upstream of the dispute, to “clear the mine field” and prepare for possible conflicts and, downstream of the dispute, to boost the efficacy of the arbitration procedure through a judicious “casting” and appropriate procedural choices. This article purports to identify these levers of action which can turn users into active players able to better control the delays and costs of international commercial arbitration which they have elected.