I am honored to be asked to participate in the preparation of the liber amicorum for Professor Bermann, whose lectures on arbitration and international dispute resolution I had the privilege to attend during my years at Columbia Law School.
In this context, I have read with interest his piece entitled “What Does it Mean to Be ‘Pro-Arbitration?’”, in which Professor Berman elaborates on Professor Park’s four basic goals of internal arbitration, i.e., accuracy, fairness, efficiency and enforceability of the award. He sets forth a non-exhaustive catalog of twelve criteria to gouge, more specifically, the character of a policy or practice as favorable, or not, to arbitration. In this note, I discuss some of the illustrations proposed by Professor Bermann in comparison to policies and practices in my own jurisdiction, Switzerland, which has a reputation for being strongly in favor of arbitration.
I. ARBITRAL PREFERENCE
Arbitral preference is embedded in the Swiss lex arbitri, which can be found in Articles 176 to 194 of the Swiss Private International Law Act (PILA). One of the best examples is Article 186 (1bis) PILA.