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

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George has invited some personal reminiscences in addition to the intellectual fare more traditionally offered in libri amicorum.  It is such a pleasure to commence by a short recollection of some of the most important memories I have of my relationship with George—both professional and personal.  I will then offer a short discussion about an issue—class arbitration—that George invited me to address at a New York Arbitration Week session dedicated to the Restatement on the U.S. Law of International Commercial and Investment Arbitration,  and in particular to issues on which the Restatement’s position changed over the course of its preparation.

George and I first met in 2000, when he was invited to be one of our experts in the Mondev  case and I was working on the NAFTA arbitration team at the U.S. Department of State’s Office of the Legal Adviser.  We were seeking an expert on comparative governmental tort law, a somewhat niche area, because one of the questions in Mondev was whether the Massachusetts Tort Claims Act (which is modeled on the Federal Tort Claims Act) constituted a denial of justice because it excluded governmental liability for intentional torts, thereby making it impossible for Mondev to submit its intentional tort claims in domestic courts.   Our goal was to assess the extent to which, if at all, the United States was an outlier in this respect.  George was and is a renowned comparative law expert, a fact sometimes eclipsed by the expertise he has in so many other areas of the law, such as European Union law, international trade law, public international law, private international law, and, of course, arbitration law.