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

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In October 2018 I met with Professor Bermann to kick off the organization of the 10th edition of Columbia Arbitration Day (CAD 2019). At the time, Professor Bermann had just published his article “What Does it Mean to Be ‘Pro-Arbitration’?” and he suggested that I read it to find potential topics for CAD 2019.  Professor Bermann’s article focused on what “pro-arbitration” means in the context of a commercial arbitration.  However, given the calls in the last few years for investor-State dispute settlement (ISDS) reform—and even if, as explained by Professor Bermann, it can be sometimes difficult to separate arbitration as a foreign investment dispute resolution mechanism, from law and policy—it is worth discussing if the measures that are being proposed to reform the ISDS system are, in fact, “pro-arbitration.” 

This essay analyzes whether the Dutch model bilateral investment treaty (Model BIT) is “pro-arbitration.” First, it discusses what is “pro-arbitration” in investment arbitration, and it analyzes this concept in the context of the ISDS reform (I).  Second, it discusses whether the Dutch Model BIT fits this concept (II).