Originally from Pro-Arbitration Revisited: A Tribute to Professor George Bermann from his Students Over the Years

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Act I:  I met Professor Bermann in September 1992 while I was a student in his very popular and well-attended course on transnational litigation and arbitration at Columbia Law School. For aspiring international lawyers (of whom I was one), the course was de rigueur.  What impressed me the most about the class at the time was that it carefully went through the thorny problems of choice of law, choice of forum, and who decides arbitrability—presenting the problems and noting the multiplicity of answers that different courts across the United States and around the world.  It was a spectacular introduction to the problems that informed my early career and I kept his course materials close by my side for years after graduation.

Act II: Twenty years later, I faced one of my worst nightmares as a practitioner and Professor Bermann came to rescue.  As a prelude to this story, I was the lead counsel for the BG Group, PLC, in its investment dispute against Argentina. During the arbitration, which involved an eight-day hearing and several rounds of written submissions, witness statements, and expert reports over the span of more than four years, Argentina argued that the arbitrators lacked jurisdiction because, among others, BG Group initiated arbitration without first litigating its claims in Argentina’s courts, despite the local litigation requirement under Article 8 of the UK-Argentina Bilateral Investment Treaty (UK-Argentina BIT). BG Group PLC. v. Republic of Argentina, UNCITRAL, Award (Dec. 24, 2007).  In Argentina’s view, the “failure by BG to bring its grievance to Argentine courts for 18 months renders its claims in this arbitration inadmissible.”