Seven years ago, Professor Hans Smit2 asked the question: When is a
government bound by a contract, including an arbitration clause, it did not sign?
In view of the then highly debated case Bridas I,3 Professor Smit concluded that
the time was ripe for the U.S. Supreme Court to take the matter in hand.4 The
Supreme Court, however, declined to grant certiorari to Bridas I.5 Instead, in
November 2010, the UK Supreme Court handed down a judgment on exactly that
issue. Very recently Professor George A. Bermann drew our attention to that
judgment,6 rendered in the matter of Dallah Real Estate and Tourism Holding
Company v. Ministry of Religious Affairs, Government of Pakistan.7 Thus, we are
faced now with a decision of the UK Supreme Court on a legal issue on which,
about seven years ago, the U.S. Supreme Court had refused to rule. The new
decision of the UK Supreme Court is full of in-depth analyses and replete with
persuasive results – with one exception, however. In addition, it must be added at
the outset that the UK Supreme Court rendered its decision, not on the basis of
English, but of French arbitration law.