Originally from Reflections on International Arbitration - Essays in Honour of Professor George Bermann

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I. INTRODUCTION

In his scholarly work, George Bermann has often dealt with “gateway” issues in international arbitration. The most fundamental of all these gateway issues is the validity of the arbitration agreement. Party autonomy is the basis of the arbitral process and the arbitration agreement is the primary manifestation of this autonomy. In his General Course for the Hague Academy of International Law, George Bermann himself has covered the issue of “party consent as the foundational stone of any arbitration” and has rightly emphasized that unlike litigation settings, contract law considerations chiefly determine arbitral jurisdiction as derived from the arbitration agreement (Bermann, International Arbitration and Private International Law, General Course on Private International Law (2017) 381 Collected Courses of the Hague Academy of International Law, 58 et seq, 97, “Hague Academy General Course”).

II. THE JUDGMENT

In light of the paramount significance of the arbitration agreement, the law applicable to it should be a matter of primary concern for parties that want to opt for dispute resolution through international arbitration. Yet, parties who negotiate and draft an arbitration agreement most often do not even consider the law applicable to the arbitration agreement, instead relying on the future arbitrators’ wisdom.