Exclusive Interview with George A. Bermann (Columbia Law School)
As this blog aims at providing fruitful and inspiring thoughts in the field of international litigation and arbitration, I thought that an innovative way to deliver those objectives would be to seek insights and reflection from prominent international litigators and arbitration practitioners.
The first person to have kindly agreed to answer my questions is Professor George A. Bermann.
Professor Bermann is the Jean Monnet Professor of EU Law, Walter Gellhorn Professor of Law, and the director for the Center for International Commercial and Investment Arbitration (CICIA) at Columbia Law School where he teaches courses in transnational litigation, international arbitration and European Union law. He is also affiliated with the School of Law of Sciences Po in Paris and the MIDS Masters Program in International Dispute Settlement in Geneva as well as a visiting professor at the Georgetown Law Center.
Alongside his academic work, Professor Bermann is also an active international arbitrator in commercial and investment disputes as well the Chief Reporter of the American Law Institute’s Restatement of the U.S. Law of International Commercial Arbitration. It is a great pleasure to publish this inspirational interview…
- Which developments are likely to take place in the coming years in the fields of international litigation and arbitration? Which factors do you think are likely to affect those changes?
The development I most expect, and expect to be most challenging, is what we might loosely call “parallel” proceedings. Both commercial and investment arbitration disputes are ending up in multiple, often deliberately competing, fora, and we have no established or even remotely agreed upon framework for resolving the tensions thereby created. This is equally true of international arbitration and litigation. We have a long way to go.
- I know that you are closely following European politics and EU law. How do you think that international litigation and international arbitration will be impacted by Brexit? Do you think that Brexit will have a strong impact on London as a key arbitration hub?
This is altogether speculative. Obviously, this is NOT a good development for international arbitration practice in the UK. However, I believe that the expertise of the UK bar and the salience of English commercial law – and their attractiveness in the international arbitration market – are not disappearing any time soon. We need to see the terms of the future relationship between the UK and the EU before we can say more.
- As you know the European Commission is currently pushing forward a proposal for a new multilateral investment court system aimed at addressing the numerous criticisms expressed about the existing investor-State dispute resolution mechanisms. What is your personal opinion on this initiative? How is this proposal perceived in the United States generally and by American lawyers in particular?
The reaction in the U.S. is deeply sceptical of the proposal, to put it mildly – both as a matter of principle/policy and as a practical matter. Certainly the current administration is not a fan of the proposal, but neither is the international arbitration community in the U.S. more generally. That community is dominated by practitioners who find the proposal very much not in their interest. The most we can hope for is a wait-and-see attitude on the U.S.’s part, keeping an eye on how the courts in the EU’s various free trade agreements work out. If the move were to get off the ground, with support well beyond the EU (and UNCITRAL’s decision to deal seriously with this prospect through a working group will have an impact on that), then the U.S. will reluctantly take it seriously (at least another U.S. administration would).
- You have been appointed Chief Reporter of the American Law Institute’s Restatement of the U.S. Law of International Arbitration. Can you tell us more about the goals and objective of this Restatement and about the current status of the different chapters?
The Restatement is mostly approved and official, though there will remain final phase work (editing, cross-referencing, and possible revisiting of a few highly controversial matters). When that process is done, it will be truly finalized and published in hard copy, without the words “tentative” or “preliminary”. Approved and official already are (a) definitions (ch. 1, part 1), (b) enforcement of the arbitration agreement (ch. 2), post-award relief (annulment, recognition, enforcement) (ch. 4), and investor-State (ch. 5). Under discussion at the American Law Institute advisory committee level next month are what remains: (a) pre-emption of state law (ch. 1, part 2) and (b) judicial involvement in the arbitral proceedings themselves (ch. 3).
Courts and litigants are beginning to cite the Restatement in their rulings and submissions, respectively.
- Do you think that the NAFTA renegotiations will have an impact on the existing investor-State dispute settlement provided for under NAFTA Chapter 11?
It inevitably will. But I do not believe that Chapter 11 is the greatest source of concern at this stage. Any impact on Ch. 11 as such will be indirect. It is the free trade provisions themselves, in all their complexity, that are the focus of concern, not the ISDS piece of NAFTA.
On a more personal note…
- In your opinion, what is the best (and worst) case-law development in the field of international litigation/arbitration (either in the U.S. or in Europe) from the last decade?
I applaud the willingness of courts, on a highly selective and principled basis, to entertain requests for the recognition and enforcement of awards annulled at the seat. There is a slow but steady move in this direction, and it is welcome. Decisions to annul awards are judgments and nothing more. No country categorically recognizes foreign judgments (i.e. recognizes them without consideration of their legitimacy and integrity) and judgments of annulment should be treated no differently.
On the same note, a very unfortunate development is the temptation of courts, having annulled an award, to enjoin the prevailing party from enforcing the annulled award anywhere. A New York state court has done just that and, justly, come in for great criticism on that account.
- What was the most interesting, intense (or amusing!) moment in your career?
I suggest you take a look at the Festschrift for Michael E. Schneider (Lalive, Geneva) entitled “Stories from the Hearing Room: Experience from Arbitral Practice” (Bernd Ehle & Domitille Baizeau eds., Wolters-Kluwer). It records the most unusual and/or awkward hearing moments experienced by leading arbitration practitioners. It is a highly amusing and entertaining read. My contribution is among them.
- Who is your role model (if any) in the international litigation/arbitration community?
My career path has not been sufficiently parallel to call him a role model, but there is no doubt that I am and have been most inspired in regard to international arbitration by Prof. Michael Reisman of Yale Law School, my own teacher (albeit at a time when international arbitration, whether commercial or investment, was scarcely on the radar screen). In regard to international litigation, I can point confidently to Prof. Arthur von Mehren of Harvard Law School as a genuine role model. I know this sounds highly U.S.-centric, but that is where I began.
- What career achievement are you the most proud of?
Rather than single out any particular achievement as the one of which I am most proud, I would point to the good fortune I have had to perform a remarkably wide range of functions in international litigation and arbitration over the years. It has been a real privilege to be, depending on the occasion at hand, teacher, academic writer, arbitrator, co-counsel, expert witness, editor, conferencier, and author of a Restatement. I believe the whole is more than the sum of the parts and performing in any one of these capacities enhances one’s ability to perform the others well.
- If you could give one piece of advice to a junior litigator, what would it be?
It is the same advice I’d give to any junior attorney. From a professional point of view, hard work and high standards above all – remaining mindful of the price in terms of your other values.