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

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I. INTRODUCTION 

There are many reasons to celebrate Professor George Bermann’s role in the development of international arbitration.  One significant and special reason is reflected in the “central but unsettled issue of domestic and international arbitration law:  Whether incorporation by reference of certain rules of arbitral procedure in arbitration clauses constitutes ‘clear and unmistakable’ evidence that the parties intended ‘to arbitrate arbitrability.’” 

As Professor Bermann argues, this currently-unsettled “who decides” controversy is a critical gateway issue  in U.S. domestic and international arbitration law because it confronts the core questions of whether parties have consented to arbitrate as well as how the parties’ consent to arbitrate will be determined by courts and arbitral tribunals alike.   Moreover, this “who decides” issue is presented implicitly, if not explicitly, in every case in which the question of arbitrability—the scope of the arbitration clause—is in dispute.

Professor Bermann’s thesis on this subject, particularly when combined with his pursuit of that thesis before the U.S. Supreme Court, may be characterized as a “bombshell” that is bold, brave, and (analytically) beautiful.   Bermann’s thesis seeks to reverse the conclusion that the overwhelming number of U.S. courts and practitioners have applied when drafting, interpreting, and/or arbitrating an arbitration agreement:  That incorporation of institutional arbitral rules into an arbitration agreement is sufficient to grant an arbitral tribunal essentially exclusive authority to determine its jurisdiction.