"Justice delayed is justice denied" (Gladstone)

"Jura vigilantibus non dormientibus prosunt / jura vigilantibus tarde venintibus ossa"

"A party who knows that any provision of, or requirement under, these Rules has not been complied with and yet proceeds with the arbitration without promptly stating his objection to such non-compliance, shall be deemed to have waived his right to object." (UNCITRAL Arbitration Rules Article 30)1

How long a "reasonable time" ought to be is not defined in law, but is left to the discretion of the judges (Black's Law Dictionary ad time, "reasonable time" quote from a US court decision).

Time is among the most elusive dimensions in human life. Even more than the sense of direction and space geometry, time consciousness pervades every aspect of human existence. As is well known, in addition to length, width and height, time may be identified as the fourth dimension, at least according to the Theory of Relativity, and this theory is beyond the understanding of the layman, especially the lawyer.

As the preceding quotations show, the law cannot avoid taking the time factor into consideration.

In fact, time will permeate every aspect of the law, including contracts, torts, procedures, enforcement and so forth.

In general, time saved is always beneficial, especially since "time is money". 2 Time efficiency is a factor in arbitration. Rightly or wrongly, speed is frequently mentioned as one of the advantages of arbitration. Numerous conferences, writings and court decisions address the issue of time in arbitration. More often than not, they take issue with efficient case management and address, for instance, such matters as parties' dilatory tactics, arbitrators' pro-active conduct of the proceedings and the role of institutions in controlling the lapse of time. However, should the time concern be restricted to the period between the initiation of an arbitration and the award? Should it not encompass the period from the occurrence of the damage until the actual discharge of the award, in other words the compensation?

This book deals with efficiency and time.

However, its approach is different in that it is less procedural and more substantive than usually the case in arbitration publications.

The initial step is an axiom. With great uniformity, everyone seems to accept that:

"The nature of liability is to re-establish as exactly as possible the equilibrium that the damage destroyed and to have the aggrieved party into the same situation that would have been his if the damaging event had not occurred."3

"Le propre de la responsabilité civile est de replacer la victime dans la situation où elle se serait trouvée si l'acte dommageable ne s'était pas produit." (Cour de cassation, Deuxième chambre civile, July 9, 1981, Bulletin civil des arrêts de la Cour de cassation II, No. 1561)

It would be impossible to cite the multitude of decisions (whether of municipal, international or arbitral courts) calling for full and adequate compensation of damage. Practically all point to the need for such compensation to be "prompt" in order to be adequate. 4

This book is an attempt at finding how the parties to a contract or to an arbitration, as well as the arbitrators themselves, should proceed efficiently to ensure the timeliness of the compensation or to find a remedy for the lack of such timeliness.

It is not unusual - quite the contrary - to find writings, symposia and guidelines dealing with the efficiency of the arbitration process itself. 5 What has attracted less attention, however, is how the parties and the arbitrators may find alternative remedies to address those very issues of time and efficiency.

The parties themselves may forestall the arbitration process and endeavour to find contractual remedies.They may either think of ways to avoid time elapsed or endeavour to facilitate the reaction to any time loss. Monetary penalties and liquidated damages clauses are some examples of such anticipatory thinking. Antonias Dimolitsa addresses such contractual remedies.

In principle, between the occurrence of the damage and the actual compensation, there is a time period with which the arbitrators do not concern themselves. This is the period of the enforcement of the award, since the arbitrators do not have any imperium. Should efficient arbitrators totally disregard the time factor after the handing down of this award? Do the early 21st century arbitrators still think that lata sententia arbiter desinit esse arbiter? Not necessarily, if they may resort to such relief as a judicial penalty.

Judicial penalties may be a way of ensuring the actual and timely enforcement of awards ordering specific performance. Is specific performance the "ultimate remedy"? In theory, the answer is obviously yes, provided, however, that specific performance is admissible under the applicable laws and actually carried out. Even if it is admissible, specific performance will in practice raise considerable difficulties, both during the arbitration process to grant it and subsequently at the enforcement stage. Alexis Mourre and V.V. Veeder will expound on such questions.

Last but not least, this book would not be complete if it left out the more classical way of efficiently addressing the time factor in arbitration, namely interim relief. On this issue, see the contribution of John Beechey and Gareth Kenny.

As is now clear, the first part of this book looks for "alternative" remedies seeking to avoid the rise of any injury due to time lapsing after the occurrence of the damage.

However, should the parties and the arbitrators not (totally) achieve this objective, then it will become necessary to compensate the aggrieved party for such further damages. This is also known as interest, which forms the subject of the second part of this book.

To be precise, interest is, among other things, compensation allowed by law or contract for the use, forbearance or deprivation of money. In fact, interest is a way to take into consideration the lapse of time prior to, during and after the proceedings.

John Gotanda studies the nature of and the general rules applicable to the various kinds of interest. Andrea Giardina focuses on some peculiar rules that frequently apply to the allocation of interest in international arbitration and, given the general scope of this book, adopts a substantive rather than procedural approach to such matters. When it comes to the matter of interest, a book would not be complete without addressing the specifics of Islamic law, which Tarek Riad does (with some additional comments from Hamayoon Arfazadeh). Finally, Thierry Sénéchal gives a short review of some economic aspects of interest and deprivation of money.

In summary, arbitrators must navigate between two dangerous reefs.

Should they wish to be extremely efficient, they may endeavour to rush for their award or resort to alternative remedies that are to a certain extent terra incognita. This may result in a less than stalwart award. Should they prefer to be (over-)prudent, they might disregard the time factor and hand down an award of diminished actual economic value. The first aim of this book and of the authors is to locate the happy medium between these two preoccupations. Its second and foremost aim is to supply material for courageous arbitrators who prefer the first risk, thus contributing to the progress of efficiency in international arbitration.

1
Cf. Art. 33 - Waiver of the ICC Arbitration Rules; Y. Derains and E.A. Schwartz, A Guide to the ICC Rules of Arbitration, 2nd edn. (2005) p. 379.

2
And one might add "and vice versa". See the contribution of Thierry Sénéchal in this volume, entitled: 'Present-Day Valuation in International Arbitration: A Conceptual Framework for Awarding Interest'.

3
Chorzow Factory case, Merits, PCIJ, Series A, No. 17, 1928, at 47-48.

4
However, the profusion and repetition of such decisions point to an ever-occurring difficulty that is never remedied.

5
J. Gotanda, 'Damages in Private International Law', Recueil des Cours, Vol. 326 (2007) p. 73 et seq.