Is arbitration really dysfunctional, as posited by some? Are the parties' expectations deceived? Who bears responsibility? Is there need for sweeping reforms? Should arbitration as a private system of adjudication be regulated? To what extent can institutions fix the problems of time and costs in arbitration?

These are the difficult and complex questions that were discussed today. Of course, no one expected solutions to appear suddenly, for there is no magical recipe that could all of a sudden resolve all the perceived problems of international arbitration. But we have debated the contemporary problems of arbitration from a practical perspective, as we always do at the Institute, and we have done so in a balanced way, bearing in mind the expectations of the users - which may not all be legitimate or realistic - and the inherent constraints of any jurisdictional activity. Undoubtedly, arbitration is facing a number of challenges. As a private system of adjudication, it has reached maturity, and as any mature industry, it needs to renew itself. Arbitration needs to look at the future, and it probably cannot do so without going back to the basics. All of us acknowledge the difficulties that arbitrators and parties sometimes encounter. Arbitration has become more complex. It takes more time. It is costly. Arbitrators are sometimes overburdened. They are too often insufficiently organized, faced to large teams of counsels who will flood them with what Michael Schneider once described as the paper tsunami - thousands of pages of submissions and hundreds of thousands of pages of evidence. Those problems are real, albeit hardly new. Whether and to what extent they have worsened in recent years can be debated. What has certainly increased exponentially is the number of articles, seminars, and the overall level of communication dedicated to these questions, to the point that one could wonder whether part of the climate of crisis that has developed in arbitration is not due to a certain level of self-inflicting anti-arbitration propaganda.

If anything, this conference will have contributed to dispel certain misconceptions. One such misconception is the idea that the time and costs of arbitration are ultimately attributable to the greed of busy arbitrators pursuing their own private commercial interest by piling up cases and delaying the solution of disputes. Such idea fails to acknowledge that more than 80% of such costs relate to the parties' own defense and representation by counsel of their own choice; and as Bernard Hanotiau noted, arbitrators are often faced with requests for postponements that can generate important delays. Another misconceived idea is that counsel and clients would have diverging interests, with counsel wanting to encourage long and complex procedures to inflate their own fees, hence the suggestion that the personal presence of their clients at the hearings should be made mandatory in order to ensure that they will not misbehave. The "whose fault is it?" approach is certainly not the proper way to deal with the contemporary challenges that international arbitration if facing.

The regulatory approach is equally misconceived. We now hear more and more voices advocating a regulatory upheaval of arbitration, which would consist in introducing rules forbidding unilateral appointments, generalizing rosters and separating the roles of counsel and arbitrator, not only in investment arbitration, but also in commercial arbitration. This would pave the way to the transformation of arbitration from a private system of adjudication into some sort of a global administrative justice, with unpredictable and far reaching consequences. The system would become closer to court litigation, with the emergence of a new generation of arbitrators who would depend more from arbitral institutions and their politics and less from the market. No one has to gain from such an evolution.

The challenges facing arbitration are however real, and they need to be addressed in a manner that is consistent with the private and consensual nature of this private system of dispute resolution. The bottom line is that parties freely choose their counsel, they freely select, based on the different rules offered by each institution, the institutional rules they want to submit to. And they freely select their arbitrators, who are private practitioners competing one against the others in a free and opened market. Because parties are free to choose their counsel, their arbitral institution and their counsel, they can and should move away from the counsels, institutions and arbitrators who they believe have been inefficient or dysfunctional and encourage more efficient ones, including new comers. The real question is another: how to make the interaction between good counsel, good institutions and good arbitrators optimal?

Arbitration, at the difference of court litigation, supposes a minimum level of bona fide cooperation between arbitrators and parties. Arbitrators sometimes forget that they provide a service to the parties, while the parties do not always bear in mind that advocacy in arbitration is different from court litigation.

As rightly pointed out this morning by Bernard Hanotiau, arbitration advocacy tends to become more and more sophisticated. In complex cases, the volume of memorials and evidence received by arbitrators has increased notably. And, in a maybe more worrisome fashion, there seems to be a reflex phenomenon in smaller and less complex cases, where an often disproportionate level of advocacy is deployed by counsel, with the result of making the ratio costs/amount is dispute unsustainable. Part of this trend is probably due to the fear by counsel of the liability that might arise if it fails to argue any and all possible argument in favor of its client, and to the fear by arbitrators of annulments based on their failure to respond in their award to argument raised by one of the parties, even if entirely immaterial to the outcome. Shorter and more focused submissions would certainly help to make arbitration speeder, less costly and more efficient. This would suppose that arbitrators could more easily give directions to the parties, not only at the outset of the arbitration but all along the proceedings, by informing them of their provisional views and of the issues they believe relevant. Too often, however, arbitrators refrain from doing so by fear of being challenged. Equally, the inflating concept of procedural public policy and the fear of annulments on due process grounds leads to a significant increase of the time of the arbitration by multiplying the number of submissions until when all parties will have had a full opportunity to respond to any and all of the arguments raised by the others, irrespective of their relevance and materiality. We should think of ways to permit arbitrators to narrow the issues they believe relevant and material and to consequently focus and limit the submissions and the evidence. Part of the solution to this problem probably lies in less court interference and more discretion in favor of arbitrators in the conduct of the proceedings.

Another aspect of the solution is avoiding that arbitrators and institutions be taken hostages of dissatisfied parties by instrumental liability actions. We have seen in recent months some egregious examples of such unacceptable tactics. The problem is twofold. First, there should be a clear rule of immunity in favor of arbitrators and institutions. From this standpoint, decisions such as that rendered by the Court of appeals of Paris in the SNF vs. CCI case are unhelpful. Arbitrators should also enjoy better insurance coverage, in particular with respect to their representation costs. Second, there should be a clear choice-of-court rule - for example in institutional rules or in terms of reference - allowing arbitrators to know where - possibly at the seat - disputes with respect to their liability would take place.

Another pervading question is, finally, that of the tools available to arbitrators to efficiently manage the proceedings. More often than not, the volume of documentation submitted and the complexity of the issues involved makes it extremely difficult for the arbitrators to manage the proceedings and issue the award in a reasonable time without the help of a secretary, in the same way as clerks to justices are used in many fora. As Constantine Partasides rightly noted, most of the objections advanced against the use of secretaries are misplaced. This is of course not to say that the use of secretaries should not be monitored by institutions in order to avoid that arbitrators will improperly delegate their decision-making functions. But the proper use of secretaries in assisting the arbitrators in their analysis of the evidence and arguments and in the preparation of certain portions of the draft award will certainly help them in timely making quality awards.

Many other areas of practice will need to evolve in order to address the problems and challenges of contemporary international arbitration. It is our hope that this conference and the ensuing Dossiers of the Institute will have contributed to the reflection and paved the way to pragmatic and efficient solutions that will be consistent with the consensual nature of this private system of international adjudication.