The subject of our discussions today is the future, as the title of the day's programme indicates. In connection with this programme I shall attempt to reflect with you on the following phrase: 'Where are the respective limits of the freedom of the parties and the arbitrators to fashion the arbitral procedure or make procedural determination?' I simply wish to invite reflection, for it is obvious on looking around this full room, which, from where I am standing, is very impressive, that I have nothing to teach you, because you know as much as I do about arbitration. I would like us to talk about the future.

I shall start with very simple and, I believe, undisputed observations. Firstly, as has repeatedly been said, international commercial arbitration has become the standard method for settling disputes and we are all aware of its enormous growth.

Secondly, as was said yesterday by Professor Bernardini and Professor Lalive and has been said again today, increasing aggressiveness is to be seen in proceedings. To use this morning's expression, coined by Mr Briner, a 'transplantation' of legal procedures is taking place, and although American and English litigators are particularly good at this kind of dramatization, others are not far behind: I have French firms, in particular, in mind. So, proceedings are being judicialized with aggressiveness. At the same time, a very striking development in the nature of arbitration is to be seen. In all systems, the sovereign was originally the fountain of justice, state courts being the expression of the sovereign. The powers exercised by arbitrators are a departure therefrom; they are contractual. To caricature, arbitrators are, as it were, an offence to the sovereign, as they assume the sovereign's powers. Arbitrators are naturally going to be held in grips, controlled by state courts, since they exercise powers which normally belong to the courts, and by the parties, as they are sovereign. They are sovereign in the conduct of proceedings quite simply because they have made use of a very special procedure. And then, over the years, what do we see? Sovereign courts increasingly start to relinquish their control and, as clearly shown by Professor Bernardini yesterday, more and more powers are given to arbitrators. They sovereignly determine the facts and may not only choose their law but in some systems do without law (I have in mind a decision by the French Court of Cassation). They can now rule on antitrust issues and order interim measures. Yet who would have thought so when ICC arbitration first began? Who would have thought so a few years ago? Who would have said, twenty or thirty years ago, that antitrust issues could be settled by arbitrators? However, although state courts, then, are relinquishing their control, and although this is an observable fact, all sets of rules, yes all, can be seen to be based on the autonomy of the parties. When I read a set of rules, this becomes almost an obsession: the parties. I take Article 15(1) of the ICC rules: 'the proceedings before the Arbitral Tribunal shall be governed by these Rules'-true, no comment-and 'where these Rules are silent, by any rules which the parties or, failing them, the Arbitral Tribunal may settle on'.

What I ask you to reflect upon is the following: it is undeniable and obvious that at the start of any arbitration proceedings, the consensus and agreement of the parties is indispensable. We have here a procedure which is an exception to the norm; there can be no question of forcing arbitration upon anybody. However, once the parties' agreement has been obtained to set proceedings in motion, is it necessary for the parties' domination or sovereignty to continue to reign throughout the entire proceedings? The question I put to you today, looking several years hence, is: should we not be considering a change? If the parties are in agreement with each other - which is much more frequent than is thought-it is they who lead proceedings and the arbitral tribunal, despite what is said, is bound. I am currently sitting on a case known to some of you here in which I had been reserved for two weeks in July and then, two months before, the parties said, 'listen, we're not ready, it'll be a little later if you please'. Right, if you must, and then what happens? Two weeks are to be taken in December and in the end the two weeks become one week in December and one week in April. I am helpless. Look at state courts in comparison. I take the French code, which I know best. When a case is struck off for dilatoriness on the part of the parties, such striking out is an administrative measure, which is to say that the first time the two parties come before a court (I refer to judicial proceedings known to me) the court says: 'all right, listen, we will postpone the case; today is 25 September; you want 17 October; all right, 17 October it will be'. Then, on 17 October, the two parties say to the court 'we're not ready, we'll come back on 15 November'. The court says: 'no, the case is struck off and when you're really ready and the case is prepared, you can come back for the case to be enrolled afresh'. I may be accused of having a 'de Gaullian' view of arbitration, far too wide a view of arbitrators' powers, but it is a topical question. Besides, I am not the only one to raise the issue, as the discussion day on 30 October among the ICC, the American Arbitration Association and the ICSID is devoted precisely to this subject.

The ICC Court of Arbitration has always shown itself to be in the forefront of progress. In 1955, for the first time, it was decided in the Rules that, failing a majority, the chairman may decide alone and deliver an award alone. It was a revolution. This power has since been enshrined in many legislative systems: Swiss legislation, the LCIA, Euro-Arab chambers of commerce, Spanish law, Swedish law, etc. I'm not sure who should be in charge of such reflection. The Court, the Commission on International Arbitration, the Institute? I think this deserves to be discussed. I ask for thought to be given to the power of the parties. I am not saying this is Gulliver in Lilliput, as arbitrators are not bigger than the parties, but in certain circumstances arbitrators cannot exercise their powers and cannot do so mainly because we cannot ignore-and this is my conclusion-the harmful effects of the judicialization which since yesterday we have been discussing and reminded of. Not so long ago I was accused by counsel of going beyond my remit, with others, over a question of a five-day time-limit for submitting a memorandum.

I would be grateful if you would give thought to the matter.