George Bermann, professor of law, is director of the Center for International Commercial and Investment Arbitration at Columbia Law School. He has been an international commercial and investment arbitrator since 1980. He is a panelist of most leading international arbitral institutions; founding member of the governing board of the ICC International Court of Arbitration; head of the global advisory board of the NY International Arbitration Center; co-editor-in-chief of the American Review of International Arbitration; and co-author of the UNCITRAL Guide to the New York Convention.
WHAT MOTIVATED YOU TO PURSUE A CAREER IN ARBITRATION?
My career as international arbitrator arose from my teaching the subject at Columbia in the context of courses on international dispute resolution. Because of my interest in the subject as a matter of practice, and not only academic interest, I began serving as arbitrator back in the early 1980s.
HOW HAS THE MARKET CHANGED SINCE YOU STARTED YOUR CAREER?
It has changed dramatically in numerous ways. First the number of disputes going to arbitration has steadily risen, and with that the emergence of international arbitration departments at major law firms. The advent of investor-state arbitration not only added to the volume of cases, but added an entirely new species, at least in terms of applicable law. Finally I would call attention to the meteoric rise in interest among students and recent graduates in entering the practice of international arbitration, and the interest among senior attorneys and retired judges in joining the ranks of international arbitrators.
HOW HAVE CLASS-ACTION ARBITRATION PROCEEDINGS DEVELOPED IN RECENT YEARS?
Class action arbitration has become more common in recent years in international commercial arbitration and, thanks to the Abaclat award, made its appearance in investor-state arbitration. In US law, of course, the prevalence of class arbitration waivers and support for them at the Supreme Court level have somewhat arrested their development.
WHAT IS THE SIGNIFICANCE OF GROWING CALLS FOR TRANSPARENCY INTO THE ARBITRATION COMMUNITY AND ITS PRACTICE?
Transparency is, of course, front and centre in investor-state arbitration, as is entirely appropriate. It is much reduced in international commercial arbitration, as is also appropriate – though the strong presumption of confidentiality has come to be eroded somewhat in recent years. Some institutions are making non-confidentiality the default rule in place of confidentiality. Happily, parties are more and more (and this is often at the suggestion of tribunals) anticipating the problem by entering into confidentiality agreements at the outset of arbitration, which is to be encouraged.
HOW DO YOU SEE THE USE OF ARBITRATION CLAUSES IN CONSUMER CONTRACTS DEVELOPING OVER THE NEXT FIVE YEARS?
I believe that, despite widespread political opposition, arbitration clauses will remain prevalent in consumer contracts in the US (as opposed to other jurisdictions, such as the EU, where they are unenforceable). Large companies continue to find them advantageous and consumers lack negotiating power to defeat them. Certainly US case law at the federal level supports their validity. The surest way to curb them, if one wishes to do so, is through legislation rather than case law in which their unconscionabilty must be determined on a case-by-case basis.
WHAT CHALLENGES DID YOU FACE SETTING UP YOUR OWN PRACTICE AS AN INTERNATIONAL ARBITRATOR?
Given my circumstances, I have faced little by way of challenges in setting up a practice as such. As an arbitrator and expert, I do not need to develop a client base. I also practice solo. Of course in other respects my practice does present challenges. I do not have a staff of attorneys but run my own office, and do so singlehandedly, so to speak. The Law School clearly operates as a professional base for me. However, we have strict rules about not using law school resources (most notably, but not only, personnel) in performing what our rules call “lucrative activities.” In sum, independence presents both advantages and disadvantages.
WHERE, IN YOUR OPINION, DOES THE FUTURE OF INVESTOR-STATE ARBITRATION LIE?
Investor-state arbitration has a rocky future, I would say. I am certainly not among those who condemn investor-state dispute settlement as it is practised today; if I did, I would not sit as investor-state arbitrator. However, I have come to think it is not the optimal mechanism for the resolution of investor-state disputes. I do not know how quickly or along what precise routes it will develop, but I do see investor-state dispute settlement heading toward a judicial model. If it does, I think development of a multilateral institution will be inevitable. To set up court systems (especially with an appellate level) for each individual BIT or multilateral investment agreement is neither feasible (in terms of staffing) nor desirable (in terms of consistency).
LOOKING BACK OVER YOUR CAREER, WHAT HAS BEEN YOUR PROUDEST ACHIEVEMENT?
I must say that I am particularly proud of not only individual professional accomplishments, but also somehow managing, at the same time, to participate in the world of international arbitration in a very wide range of capacities, and to do so meaningfully in all of them. Teaching at Columbia for all these decades has been immensely gratifying in itself, and in that context I am especially proud (immodest as it might seem) to have helped educate and shape by now what amounts to more than one generation of international arbitration practitioners, and to have the pleasure of having them appear before me and even sit with me as co-arbitrators. But again, I have performed this work in anything but isolation. I have a very substantial career as international arbitrator, adviser to counsel in arbitration (and occasionally co-counsel), and expert witness in international arbitration matters before both courts and tribunals. I also think that the work I have done over the past decade on the American Law Institute’s Restatement of the US Law of International Commercial and Investment Arbitration has been highly valuable to the profession and to courts, which are its primary addressee. Maintaining a strong presence in all of these international arbitration arenas has not been easy and I am proud of having been able to do so, at least to the extent I have.
George Bermann “couldn’t be more wonderful” as arbitrator in high-stakes commercial and investment disputes. Peers add, “He is very smart and experienced, and is excellent on the theoretical details.”
George A Bermann is professor of law at Columbia Law School, teaching international commercial and investment arbitration, transnational litigation, EU law, and comparative law. He directs Columbia’s Center for International Commercial and Investment Arbitration (CICIA).
He is professeur affilié at the Law School of Sciences Po in Paris, and teaches regularly on the MIDS programme in Geneva and at Georgetown Law Center.
Bermann is an experienced international arbitrator, in both commercial and investor-state cases, in both institutional and ad hoc arbitrations, and both as party-appointed and chair. He frequently serves as counsel and expert witness in litigation and arbitration alike.
He earned BA and JD degrees from Yale University and a master’s degree in law from Columbia. Following several years of law practice in New York with Davis Polk & Wardwell, he entered into law teaching, legal scholarship and arbitration practice.
Bermann is co-chair of the board of advisers of the New York International Arbitration Center (NYIAC); founding member of the governing board of the ICC Court of International Arbitration; co-author (with Emmanuel Gaillard) of the UNCITRAL Guide to the New York Convention; and chief reporter of the American Law Institute’s Restatement on the US Law of International Commercial Arbitration. He is co-editor-in-chief with Rob Smit of the American Review of International Arbitration and chair of the executive editorial board of the Columbia Journal of European Law. He is widely published through books and articles on international dispute resolution (including arbitration), private international law and EU law.
Bermann arbitrates in English and French, and in the full range of international disputes.