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

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George Bermann’s extraordinary contributions to scholarship and practice have come mainly in two distinct but related fields, comparative law and international arbitration. While most comparative law studies have nothing to do with arbitration, and much arbitration scholarship is not comparative, it seems a fitting tribute to Professor Bermann to explore the ways these two fields interact and overlap. For decades, scholars have identified an intimate relationship between international arbitration and comparative law.  Scholarly interest in that relationship has waxed and waned, and is now at one of its occasional peaks.  It is therefore also timely to consider the impact of comparative law on international arbitration, and vice versa.

What particularly interests me, in light of Professor Bermann’s accomplish-ments as both a scholar and an arbitrator, is the role of comparative law in arbitration practice. As I and others have argued, comparative legal questions suffuse international arbitration, to the point that nearly every stage of an arbitration, from the drafting of arbitration agreements to the enforcement of awards, involves comparative law analysis. What has been less often explored is an inevitable effect of this characteristic of international arbitration: that advocates must perforce couch their arguments in comparative law terms. The radical character of this observation will be apparent to anyone who has struggled to push domestic courts and the litigators who appear before them to think comparatively.