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

Preview page

I. INTRODUCTION

International arbitration is now ubiquitous, and its users have become sophisticated. After electing to resolve their disputes by arbitration, parties and their counsel must grapple with the legal framework that supplies the obligation to arbitrate, as well as the terms on which they must do so.  But as with any framework that seeks to establish and regulate a procedure, there is scope for participants in that procedure to tactically maneuver.  Commentators have thus observed the rise of recalcitrant procedural tactics—or “guerrilla tactics”—in international arbitration. And they have lamented that there are limited tools available to arbitrators to address such gamesmanship.

The duty to arbitrate in good faith is said to be a salve for “guerrilla tactics.”  But there is a need to find a more robust basis in U.S. law for the duty. This essay suggests that, where an international arbitration agreement is governed by U.S. law, the Federal Arbitration Act’s (FAA) “pro-arbitration” policy can be deployed to address these concerns, because it supplies a normative basis for the obligation to arbitrate in good faith.