Conférence Annuelle du Comité Brésilien d’Arbitrage (CBAr)

Outre son intervention intitulée “As preclusões na arbitragem”, Yves Derains a prononcé le discours d’ouverture de la conférence annuelle du Comité Brésilien d’Arbitrage (CBAr) qui s’est déroulé du 21 au 23 septembre 2014 à Porto de Galinhas, au Brésil et dont le thème principal était “arbitrage et durée”. Un article publié par Global Arbitration Review (GAR) le 23 septembre 2014 résume les points essentiels d’Yves Derains sur l’équilibre entre célérité et procédure équitable dans l’arbitrage :

“In launching the event, Derains, partner at Derains & Gharavi in Paris, noted the central tension in arbitration that parties in theory want rapid proceedings, but in practice follow other impulses. Derains focused on three main ways in which arbitrators can improve to ensure more efficient proceedings. First of all, he called for arbitrators to model proceedings to each specific case, as a tailor-made process cuts waste. (…). Arbitrators should determine which facts are and are not in dispute, and what kind of evidence may be needed to support certain points; while it is not easy, as arbitrators cannot belie any preference, it makes for a more efficient process overall. “I am sometimes shocked when I write an award that although we heard 25 witnesses, I am only referring to two, and I think, ‘why did we spend time hearing them, why did the parties bear the costs of preparing them’… he lamented. Derains also argued that arbitrators should enforce time limits more strictly within the arbitral process. “One of the plagues of arbitration is that arbitrators are too scared to enforce time limits which the parties themselves have created….and why? Because arbitrators [...] think their award will be challenged if they don’t, and that is wrong: no judge would do that,” he said. Arbitrators should encourage parties to set reasonable time limits, and should warn them at the beginning of proceedings that those limits will be strictly enforced – reducing significantly abuse by counsel who simply assume an extension will be given. (…) The length of time taken by some arbitrators in producing the final award was also criticised by Derains, who said there was “absolutely no reason” to take a year to produce an award. Despite his exhortations for efficiency, Derains concluded by noting that in the balance between celerity and due process, the two elements do not have the same weight. “The purpose of arbitration is to resolve a dispute with a valid award, and for that you must respect due process. If you are very fast and there is no due process, there is no point, because the award will be null and void and you will have just wasted time. If you have to sacrifice one, please, sacrifice speed.“