Originally from Pro-Arbitration Revisited: A Tribute to Professor George Bermann from his Students Over the Years

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PROLOGUE

The inquiry, research, and analysis discussed herein are much indebted to Professor Bermann. His courses on international arbitration, his leadership in drafting the Restatement (Third) on the U.S. Law of International Commercial Arbitration, and his research questions precipitated the survey I conducted to address my inquiry; his seminal scholarship on “gateway problems” in the enforcement of arbitration agreements in U.S. courts shed light on how to analyze seemingly divergent approaches. For such invaluable opportunities and insights, and most of all, his generous mentorship, I am deeply grateful.

I. INTRODUCTION

Parties resisting arbitration commonly seek intervention from courts on the ground that the relevant arbitration agreement either suffers from a severe defect or is nonexistent. When examining an arbitration agreement at the outset of arbitration, U.S. courts typically adopt one of the following three choice-of-law approaches: (1) they directly apply the forum’s substantive law regardless of the parties’ chosen law; (2) they directly apply the parties’ chosen law; or (3) they apply the forum’s choice-of-law rules to find the applicable law. These approaches follow a “pro-arbitration” framework that balances party autonomy in international arbitration and the public policy interests in the judicial forum where the courts sit.