Professor Bermann’s class on “Transnational Litigation and Arbitration” was, in many respects, a formative experience for me. When I took the class as a 24-year-old exchange student in 2005, it was the first time I really heard about international commercial arbitration. But I was also deeply impressed by Professor Bermann’s engaging and thoughtful attitude as a teacher.
I read Professor Bermann’s 2018 article on “What Does it Mean to Be ‘Pro-Arbitration’” as an expression of this attitude. It is at the same time very clear in its firm support of a “pro-arbitration” stance and very nuanced in its normative prescriptions. While Professor Bermann’s article mostly focuses on procedural matters, this contribution sketches the implications of a “pro-arbitration” approach regarding the applicable law in international commercial arbitration.
It will show that here, too, “it may actually be in international arbitration’s best interest to advance values that are themselves extrinsic to arbitration.” As a matter of the conflict of laws (infra A) the question of how to be “pro-arbitration” can be framed as question of party autonomy (infra B) and its necessary limits (infra C).