Why Pro-arbitration? - Chapter 44 - Reflections on International Arbitration
There have been two giants in my international arbitration life—Professor Hans Smit and Professor George Bermann. I have had the great privilege of collaborating with Professor Bermann with respect to the international arbitration courses we teach at Columbia Law School, and the great pleasure of co-editing with him the American Review of International Arbitration—both endeavors that were dear to my father’s heart. Like my father’s scholarship, Professor Bermann’s writings have deeply affected my own thinking about the most fundamental and difficult issues that arise in the field. I marvel at Professor Bermann’s ability to offer original and insightful analytical frameworks to address complex international arbitration issues that have confounded legislatures, courts and commentators alike. And I marvel at the clear and straightforward prose he uses to do so.
Three of my favorite Bermann articles are “The ‘Gateway’ Problem in International Commercial Arbitration” (“Gateway”), “The self-styled ‘autonomy’ of international arbitration” (“Autonomy”), and “What does it mean to be ‘pro-arbitration’?” (“Pro-arbitration”). His Gateway article addresses the “gateway” issue of who decides challenges to arbitral jurisdiction—courts or arbitrators—by balancing considerations of arbitration’s “legitimacy” (i.e., the parties’ consent to arbitration) and “efficacy” (i.e., freedom from judicial intervention). His Autonomy article explores various aspects of international arbitration’s “autonomy” from other procedural and substantive legal regimes. Finally, his Pro-arbitration article addresses its title’s question: “what” does “pro-arbitration” mean?