“The opposite of law is not chaos, it’s arbitration.” This punch line from the Columbia Law School Law Revue musical performance in 2020 stuck in my mind and I often quote it as a joke to friends and family, though only my legally trained friends get the joke (my family is still very confused). Of course, the joke was on us: those pro-arbitration zealots sitting in one of Professor Bermann’s many popular classes (I took International Commercial Arbitration). The image of us listening to the Law Revue’s witty tunes, therefore, was a synecdoche of the age-old paradigm of what happens when the pro-arbitration community encounters anti-arbitration dogma.
I am Bulgarian by origin and we have a saying that is very telling of the Bulgarian national spirit: “Too good is not good!”. None of Professor Bermann’s students has failed to appreciate the perspective that, likewise, some things that seem too pro-arbitration may not in fact be good for arbitration. However, Professor Bermann also coined a unique analogy: that of arbitration as a “separatist political movement” seeking its “independence from whatever regime of which it would otherwise be part.” In this short contribution dedicated to Professor Bermann, I would like to explore (i) whether the ultimate independence—arbitration statehood—is possible and (ii) whether creating an arbitration state in fact would be pro-arbitration.
I. IS THE ARBITRATION STATE POSSIBLE?
What do I mean by “arbitration statehood”? Put simply, it is the incorporation of arbitration as the sole system of civil dispute resolution within a sovereign state—without any courts and judges. At first blush, this is a radical idea.