For us—arbitration enthusiasts since law school—Columbia always seemed like the right choice for the same reason: to be taught and lectured by Professor Bermann. Little did we know that not only is his reputation of being a great professor just, but he is also an extraordinary human being. Always making himself available for students, to guide them even on matters that are not only related to his class, but life in general. Each of us got to know Professor Bermann in such a privileged way that writing this piece for him can only be called one thing: an honor.
Within the universe of what it means to be pro-arbitration, Professor Bermann wrote an article called “The ‘Gateway’ Problem in International Commercial Arbitration,” in which he defines as gateway those issues that are analyzed by national courts prior to arbitral tribunals. The term, in its narrow definition, has been applied by the Supreme Court of the United States to encompass the “threshold jurisdictional issues” that a court, if requested, will decide, instead of referring the parties directly to arbitration.
Challenges to the validity, existence and scope of the arbitration agreement (gateway issues) are generally addressed by the courts at the outset through a full review of the challenge, unless otherwise agreed upon by the parties. Challenges regarding conditions precedent to arbitration, time limits and waiver (non-gateway issues) tend to be referred by courts to the arbitral tribunal. Further, the separability principle also plays a role in determining the allocation of jurisdiction when it comes to the enforcement of arbitration agreements.
The present essay will examine the Brazilian approach to the gateway issues defined by Professor Bermann—a concept with which Brazilians are not familiar—based on an analysis of thirty five decisions.