Originally from Pro-Arbitration Revisited: A Tribute to Professor George Bermann from his Students Over the Years

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International commercial arbitration is an essential tool for operating the twenty-first century economy. Though not beyond threat, the field, and its position in the international order, is established.  And, while the authorization and power for international arbitration, quite necessarily, derives from its continuing integration into private contractual agreements, it is not fairly described as a purely private enterprise.  International arbitration is governed by a developed body of rules, standards, and practices that are both mandated by standing arbitration organizations and voluntarily adopted by its practitioners.  Moreover, widespread governmental assent to the New York Convention, and its attendant adoption into domestic law, has created a relatively stable transnational disputes resolution platform.  All of this is to say that, within the world of commercial entities doing business across borders—and the law firms and other professionals who serve them—arbitration is not controversial.  Indeed, where cross-border interests are at issue, it is a well-welcomed default, providing certainty for governance and enforcement where there would otherwise be none. 

But the universe of legal disputes extends far beyond this primary audience for international arbitration. Indeed, it may be easy for practitioners focused on international arbitration in the United States to occasionally overlook that most disputes are decidedly local.  In 2018, the United States Federal Judiciary reported 277,010 new civil case initiations. See U.S. Courts, Federal Judicial Caseload Statistics 2018, available at https://www.uscourts.gov/statistics-reports/federal-judicial-caseload-st... (last accessed March 18, 2022). And, more significantly to the point, data collected by the National Center for State Court’s Courts Statistics Project, revealed that parties initiated 16.4 million civil cases across the fifty state court systems in 2018.  Of these state court initiations, 47% sounded in contract and 17% concerned “small claims.” See National Center for State Courts, State Court Caseload Digest 2018 Data, available at https://www.courtstatistics.org/__data/assets/pdf_file/0014/40820/2018-D... (last accessed March 18, 2022).