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

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I. INTRODUCTION

It is a great honor and pleasure to contribute to this Liber Amicorum for George Bermann. There are numerous topics with a personal element resulting from our – by far too – few meetings in person which would have been suitable to honor George, not only as a person but also as a leading academic in the area of international arbitration. The most topical of these meetings relates to the American version of the competence-competence doctrine, given the recent decision(s) of the US Supreme Court in Schein v. Archer  and George’s amicus curiae submission in the case’s proceedings. The underlying question of the legal relevance of competence-competence provisions in the chosen arbitration rules had been hotly debated at the last meeting of the American Law Institute (ALI) on the Restatement of the U.S. Law of International Commercial and Investor-State Arbitration (Restatement), to which George had invited me. In our short discussion after the meeting, I indicated that from a German perspective the approach finally adopted in the Restatement was definitively more convincing than the prevailing jurisprudence of the U.S. courts at the time. In Schein v. Archer, the Supreme Court in the end avoided to give a definitive answer to this controversial question. I hope, therefore, that the following sketchy comments, adding a foreign perspective to the American discussion, find George’s interest, notwithstanding his extensive publications  on the broader question of competence-competence.