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

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I am too old to have been lucky enough to have been one of Professor George Bermann’s students. But I count myself as extremely fortunate to have gotten to know him as a member of the international arbitration community.  Professor Bermann models for me, and I’m sure for so many others, what it means to be a member of a vibrant legal community in a field of law; a community defined by generosity, intellectual camaraderie and mutual support, and a community that views the law as a field that can be improved by rigorous debate.

One of Professor Bermann’s many thought-provoking insights is that a central aim of arbitration law is to reconcile the ideals of legitimacy and efficacy.   In this essay, I explore how those ideals are balanced in US arbitration through the operation of two principles that are said to underlie the Federal Arbitration Act (“FAA”)—the equal footing principle and the federal policy in favor of arbitration.   While much of what I say about the concepts of legitimacy and efficacy does not correspond precisely with Professor Bermann’s express articulation of his views, I hope it is true to their spirit.

I. LEGITIMACY AND EFFICACY IN ARBITRATION

Questions of legitimacy can arise in arbitration in two primary ways:  first, with respect to the basis upon which a party can be denied access to courts that would otherwise have jurisdiction to resolve a particular dispute and, instead, be compelled to arbitrate; and, second, with respect to the basis upon which a party can be compelled—through the enforcement machinery of the state—to comply with an award issued by a private arbitral tribunal.