What Does it Mean to Be “Pro-Arbitration?” Overcoming the “Pro-State” v. “Anti-State” Dichotomy In Sovereign Debt Disputes - Chapter 22 - Pro-Arbitration Revisited: A Tribute to Professor George Bermann from his Students Over the Years
When reading Professor Bermann’s piece “What Does it Mean to be ‘Pro-Arbitration’?”, the first thing that comes to mind is the well-known dichotomy between investors and States’ interests underlying investment arbitration disputes. Why do we continuously think about investment arbitration being “pro” or “anti” State? Numerous arguments have been made that international arbitration institutions have been built, and rules have been created and enforced by a handful of stakeholders typically from developed countries, in detriment or disregard of the developing world, which ultimately leads to an unequal and inequitable arbitration system. While I tend to support this view, Professor Bermann’s piece also makes me believe that some rules (or forums) may distinctly serve States’ or investors’ well-being in some respects, “while equally distinctly disserving it in others” (Bermann: 2018). Hence, when creditors (or investors) seek to enforce contractual obligations arising out of sovereign debt bonds or instruments against a defaulting State, creditors have until recently only resorted to domestic courts instead of investment arbitration –the usual suspects found in sovereign debt instruments being New York or London. This piece intends to unravel in a few words some of the various nuances that may arise from having a “pro-arbitration” or “anti-arbitration”, versus a “pro-State” or “anti-State” view when resolving sovereign debt disputes, supporting Professor Bermann’s view that a single policy or practice’s “friendliness to arbitration” must not be examined through a narrow lens (Bermann: 2018).