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

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Professor George Bermann has been an exceptionally valuable scholar in many areas of law, including, but not limited to, comparative law, European Union law, procedural law and international arbitration. He has also developed ways of effectively relating his many areas of expertise to each other—each enriching and expanding the others.  The relationship between comparative law and international arbitration provides a particularly important example. This brief essay seeks to expand on Professor Bermann’s work by exploring new ways of using comparative law to sharpen and enhance the tools available for predicting international arbitral decisions. I expect it to be of value for lawyers and scholars in the areas of international arbitration, comparative law and other facets of transborder legal relations.

Those involved in international arbitration know that many influences interact to shape the content of arbitral decisions. They may also know where to look for some of them.  As far as I am aware, however, they typically look for them on what I call an “ad hoc” or random basis—i.e., they rely primarily on individual experiences and inclinations in looking for and assessing the forces that shape the content of arbitral decisions. They lack a method or analytical framework that can reliably identify individual influences, show the relationships among the relevant influences and predict their likely impact on specific decisions. As a result, they may see some individual trees (influences on decisions) but they may not perceive the forest, and without seeing the forest in which the trees are located, they may miss nearby trees, they are not likely to recognize important relationships among trees, and they may be unable to accurately assess the force and impact of the individual trees.  This can significantly impair their capacity to predict the content of an arbitral decision.  I suggest that there may be much value in utilizing a more structured framework of analysis that can more effectively identify and assess the influences that shape arbitral decisions.