Article from: TDM 4 (2018), in Editorial
La Poule aux œufs d'or
L'avarice perd tout en voulant tout gagner.
Je ne veux, pour le témoigner,
Que celui dont la Poule, à ce que dit la Fable,
Pondait tous les jours un œuf d'or.
Il crut que dans son corps elle avait un trésor.
Il la tua, l'ouvrit, et la trouva semblable
A celles dont les œufs ne lui rapportaient rien,
S'étant lui-même ôté le plus beau de son bien.
Belle leçon pour les gens chiches:
Pendant ces derniers temps, combien en a-t-on vus
Qui du soir au matin sont pauvres devenus
Pour vouloir trop tôt être riches ?
The Hen that laid the Golden Eggs
Greed, making us want it all, loses us everything.
The sole witness that I have to bring,
As the fable has it, is the one stupid man whose Hen,
Each day, laid for him an egg of gold.
Quite sure that in her body she held treasures untold,
He killed and opened her up, and found her then
Just like the Hens whose eggs awarded him no riches.
He'd destroyed his own wealth through his itches.
For the greedy the lesson's a boon:
Lately, how many have we seen, to their utter dismay,
Who've made themselves paupers just in a day
By straining to get rich too soon!
As La Fontaine's 1668 fable with the hen that laid the golden eggs shows, greed begets greed, and a short-sighted action can prove disastrous.
This fable and its lesson may be transposed to international arbitration, which, at its root was to be a speedy and cost-effective system of dispute resolution compared to court litigation. Today, however, studies conducted by Queen Mary University / White & Case and ICSID for example indicate that costs and delay are common concerns raised by parties in international arbitration.
Not addressing these concerns would amount to a short-sighted omission leading to the possible decline of arbitration. To uphold the legitimacy of arbitration, both commercial and investor-state, it is necessary to find a proper balance between adopting measures that promote efficiency and achieving procedural fairness in arbitration proceedings. All stakeholders - arbitral institutions, parties, arbitrators, local courts (in the exercise of their supervisory and enforcement powers), third party funders - must work together to achieve such balance.
Each article in this Special Issue looks at innovative ways to remedy the problem of delay and expense and achieve cost-efficient arbitration proceedings.
Oliver Browne and Robert Price consider how arbitrators may take on a more active role to prevent guerrilla tactics, drawing from the example of civil litigation reforms in the UK.
Michele Curatola and Federica De Luca focus on strategies to control the time and costs associated with document production, a phase that often represents a large portion of the overall arbitration costs.
Jeffrey Sullivan discusses the recoverability of costs associated with third party funding, analysing in particular the Essar v. Norscot case, in which the English High Court upheld an ICC arbitral award which answered in the affirmative.
Patricia Živković analyzes the possibility of using costs allocation as a tool to enhance efficiency in international arbitration, and the impact of ordering the reimbursement of substitute payment of the advance on costs during the course of the arbitration.
Mohsen Mohebbi and Mojtaba Asgharian focus on the role of arbitrators in controlling the time and costs of arbitration, particularly whether time and cost reduction can be qualified as their duty or power.
Boris Kasolowsky and Caroline Kittelmann discuss the UNCITRAL Transparency Rules and the costs implications in investment treaty arbitration, referring in particular to the application of such transparency rules in the BSG v. Guinea case.
Iliyana Dimitrova examines the different approaches to third party funding and confidentiality taken in various jurisdictions, and suggests that mandatory disclosure of third party funding arrangements would enhance certainty in international commercial arbitration.
Lars Markert discusses criteria for the concept of efficiency and how these might have to be balanced with the typical characteristics of investment arbitration, which add an additional dimension to the issue.
Johannes Landbrecht discusses the potential benefits of regulating measures for security for costs via institutional rules, such as in the Vienna Rules 2018.
It is hoped that the innovative approaches identified by these authors will be considered by all stakeholders in the arbitral community for the purpose of discouraging incessant delays and inordinate costs that often characterize arbitration proceedings.
 English translation reprinted from The Complete Fables of Jean de la Fontaine by Norman B. Spector, Northwestern University Press (http://lafontaine.mmlc.northwestern.edu/fables/poule_oeufs_vv.html)