On June 16, 2022 at the 34^th Annual ITA Workshop and Annual Meeting in Austin, Texas,  Andrea K. Bjorklund (Associate Dean of Graduate Studies, Full Professor, and the L. Yves Fortier Chair in International Arbitration and International Commercial Law at McGill University Faculty of Law, Montreal),1To learn more about Prof. Bjorklund, see https://www.mcgill.ca/law/profs/bjorklund-andrea.X1 interviewed Professor George A. Bermann (Jean Monnet Professor of EU Law and Walter Gellhorn Professor, Columbia Law School, New York) for a continuing series of oral history interviews by the ITA Academic Council — the Preserving Perspectives Project:  International Arbitrators in Their Own Words. 

The recording of the interview can be found here.

The Preserving Perspectives Project conducted its inaugural interview in February 2012, between the late David Caron3David D. Caron was an international judge, arbitrator, and professor of law; he passed away in 2018. See http://davidcaron.life/ for more.X3 and Prof. Bermann.  It is fitting, then, that the reprisal of Prof. Bermann’s interview take place ten years later in honor of Prof. Caron.  It is similarly fitting that Prof. Bjorklund conduct the interview, as she was the first academic council member and chair to carry forward Prof. Caron’s vision of the Preserving Perspectives Project.

This article preserves the interview and contemplates Prof. Bermann’s impact on the field of international arbitration.  First, it briefly introduces Prof. Bermann, before delving into the “manifest destiny” that led him towards arbitration.  Next, it turns to one of Prof. Bermann’s most well-known accomplishments, the Restatement Project.  It concludes with Prof. Bermann’s reflections on his career and on the field of arbitration.  While this article does its best to convey the substance of the interview, Prof. Bermann’s charm and wit — and many additional stories — do not translate well to text.  It is highly recommended that readers take the time to watch the interview, too.

George A. Bermann is professor of law and director of the Center for International Commercial and Investment Arbitration at Columbia Law School, as well as member of the faculty of the Ecole de droit, Sciences Po (Paris) and the Geneva LL.M. in International Dispute Settlement (MIDS).  He has been an arbitrator in scores of international commercial and investment cases since 1985 under the aegis of most leading international arbitral institutions.  He is head of the global advisory board of the New York International Arbitration Center (NYIAC), fellow of Chartered Institute of Arbitrators, founding member of the Governing Board of the ICC International Court of Arbitration (Paris), and head of the advisory board of the Thai Arbitration Center (Bangkok) and Center for International Investment and Commercial Arbitration (Lahore, Pakistan).  Prof. Bermann is Chief Reporter of the ALI Restatement of the US Law of International Commercial Arbitration, co-editor-in-chief American Review of International Arbitration and member of board of editors of Revue de l’Arbitrage.  He co-authored (with the late Emmanuel Gaillard) the UNCITRAL Guide to the New York Convention and author of many books, book chapters, and articles on international dispute resolution — notably international arbitration.

Like many other giants in the field of international arbitration, Prof. Bermann did not plan on becoming a world-renowned arbitration practitioner.  Even though his father was a small-town lawyer, he was torn between law, journalism, and architecture.  Having strong programs in both law and architecture, Yale College was a natural choice.  But eventually—once he became familiar with was law was and knowing his strengths and weaknesses to the point where he felt weaker in having what it takes to be a good architect—law won out. 

Admitted to Yale Law School, Prof. Bermann became hooked on international law after taking the only available international law class, “Public Order in the World Community,” taught by Myres McDougal1Myres McDougal was a Sterling Professor Emeritus of Law at Yale Law School and a renowned authority on international law; he passed away in 1998. See https://news.yale.edu/1998/05/08/obituary-myres-smith-mcdougal-sterling-professor-emeritus-law for more.X1 and Michael Reisman.2W. Michael Reisman is Myres S. McDougal Professor of International Law at the Yale Law School. See https://law.yale.edu/w-michael-reisman for more.X2  He also credits his “Conflict of Laws” course, taught by Louis Pollak,3Louis Pollak was a dean at Yale Law School and a U.S. District Court judge. See https://law.yale.edu/yls-today/news/judge-louis-h-pollak-48-former-yls-dean-dies-89 for more.X3 as putting him on the path to international arbitration.

After graduating from Yale Law School in 1971, Prof. Bermann took an associate position at Davis Polk & Wardwell in their litigation department, working on the case Compagnie Financiere de Suez et de l’Union Parisienne v. U.S., 492 F.2d 798 (Ct. Cl. 1974).  After four years at Davis Polk representing “world class corporate culprits,” Prof. Bermann decided to pursue his academic career.  In explaining to Prof. Bjorklund why he left, he recounted a conversation he had with his wife, saying “this cannot be my manifest destiny.  What if my whole career is like this and this is what I've built it up all for?”  Doing the unthinkable, Prof. Bermann quit Davis Polk and obtained a two-year fellowship from Columbia Law School, in which the first year was spent studying either French or German law and teaching at Columbia, and the second year was spent in the chosen country. 

However, in his first year of the fellowship, he was invited to join the faculty at Columbia, with the understanding that he would have to go to Germany after his year in France.  So, in 1975, he worked at the Conseil d’État (French Supreme Administrative Court) in France, with the University of Paris, where he actively participated in deliberations as an intern.  Then, he spent one semester learning German at the University of Munich and the next at the Max Planck Institut für ausländishes öffentliches Recht und Völkerrecht in Heidelberg. 

After two years spent “swanning around Europe,” Prof. Bermann was faced with teaching at Columbia Law School.  Although anxiety plagued him at first, he soon became comfortable, and now finds teaching exhilarating.  He noted that he has yet to find a field with students more passionate than those in arbitration and that the field is growing immensely.

            Prof. Bermann was then invited to co-teach an International Litigation seminar with Henry deVries,4Henry deVries was a lawyer and Professor Emeritus at Columbia Law School; he passed away in 1986. See https://www.nytimes.com/1986/09/25/obituaries/henry-p-devries-a-lawyer-and-professor-at-columbia.html for more.X4 who Bermann credits with introducing international arbitration to Columbia Law School along with Hans Smit.5Hans Smit was a distinguished Columbia Law School professor and practitioner in international arbitration and procedure; he passed away in 2012. See https://www.law.columbia.edu/news/archive/hans-smit-58-towering-figure-international-arbitration-dies-84 for more.X5  This led directly to his first arbitrator appointment.  One of deVries’ colleagues at Baker Mackenzie, Robert Davidson, nominated Prof. Bermann as a party-appointed arbitrator, in what Prof. Bermann now describes as a potential disclosure error due to deVreis’ proximity to the case.  That case received the one of the first anti-arbitration injunctions addressed to the Tribunal from a Mexican court, leading Prof. Bermann to call it “unforgettable.”

Perhaps one of Prof. Bermann’s more well-known accomplishments, the conversation turned to the American Law Institute’s Restatement Project.1Restatement of the US Law of Int’l Commercial and Investor-State Arb (Am. L. Inst. 2019), https://www.thealiadviser.org/international-commercial-arbitration/.X1  He had gotten to know Carolyn Lamm,2Carolyn Lamm is a Partner at White & Case (Washington, D.C.) and a renowned leader in the field of international arbitration. See https://www.whitecase.com/people/carolyn-lamm for more.X2 who was a member of the Council of the American Law Institute (ALI) and prevailed in her fight to get an international arbitration restatement.  She approached him to be the Chief Reporter for the new International Commercial and Investor-State Arbitration Restatement, at which point he selected his co-Reporters:  Catherine Rogers, Christopher Drahozal, and Jack Coe.  Together, they spent twelve years on the project, identifying the role of courts over the life-cycle of an arbitration.3See George A. Bermann et al., Restating the U.S. Law of International Commercial Arbitration, 113 Penn. State L. Rev. 1333 (2009) (reflecting on the process of producing and presenting the Preliminary Draft of a chapter addressing Recognition and Enforcement of Arbitral Awards).X3  Of course, Prof. Bermann, commented, the recent United States Supreme Court ruling in ZF Automotive US, Inc. v. Luxshare, Ltd., 142 S. Ct. 2078 (2022),4George A. Bermann, ZF Automotive: Predictable Outcome, Lackluster Reasoning, Transnat’l Lit. Blog (June 14, 2022), https://tlblog.org/zf-automotive-predictable-outcome-lackluster-reasoning/ (discussing and criticizing the Supreme Court’s analysis and outcome in ZF Automotive).X4 brought the project back to the drawing board as the Court took the opposite view on the applicability of 28 U.S.C. § 1782 in international arbitration as the Restatement authors.5Brief Amici Curiae of George A. Bermann et al., ZF Auto. US, Inc. v. Luxshare, Ltd., 142 S. Ct. 2078 (2022), https://www.scotusblog.com/case-files/cases/zf-automotive-us-inc-v-luxshare-ltd/.X5  Luckily, the Restatement collects both view points on the issue, so it was mainly a matter of redrafting the black letter law and comments, and reversing the reporter’s notes to support the Court’s opinion.

On the open question of whether ICSID arbitration will be considered differently than commercial arbitration under § 1782, Prof. Bermann opined that functionally speaking, while ICSID tribunals pass judgment on government actions, they will likely not be considered to be exercising governmental authority.

After guiding Prof. Bermann through the various twists and turns of his career, Prof. Bjorklund changed gears, asking Prof. Bermann to reflect on his career:  “Which arbitral award, that a tribunal on which you were sitting, has had the broadest influence?”  Prof. Bermann turned to P.L. Holdings v. Poland,1PL Holdings S.à.r.l. v. Republic of Poland, SCC Case No. V 2014/163, Partial Award, ¶ 316 (June 28, 2017).X1 in which the Tribunal, of which he was President, denied Poland’s intra-EU objection to jurisdiction.  On appeal, the Svea Court of Appeals again denied the intra-EU objection, finding that  unlike in Achmea v. Slovakia (I) — which was pending before the European Court of Justice at the time — Poland did not raise an intra-EU objection, which the lower Swedish court deemed waived.2PL Holdings S.à.r.l. v. Republic of Poland, SCC Case No. V 2014/163, Judgment of Svea Court of Appeal on Set-aside Application (English), pg. 34-35, 38-42 (Feb. 22, 2019).X2  The case was referred to the European Court of Justice, which, in Prof. Bermann’s view, essentially extended the Achmea holding to commercial arbitration.3PL Holdings S.a.r.l. v. Poland, SCC Case No. V 2014/163, Judgment of the Grand Chamber of the European Court of Justice, ¶¶ 47-56 (Oct. 26, 2021).X3

When asked to reflect on the changes in the field since he began his career, Prof. Bermann mentioned demographics and technology, but alighted on a particular change in advocacy, related to the political polarization seen across the globe:  demonization of the other.  His solution to this negative advocacy was to emphasize that it doesn’t work.  “Lawyers are pragmatic,” he mused, “if you tell them, ‘you have an interest in doing things differently,’ there might be a response.”

In closing, Prof. Bermann advised new practitioners to attempt to make it seem like they sincerely believe the position of their client, to concede ground when possible in order to garner credibility, and to overall demonstrate good judgment and reasonableness.

Prof. Bermann is undoubtedly one of the most influential practitioners in the field of international arbitration.  His career boasts a star-studded cast of similarly impressive colleagues and a commitment to crafting the next generation of giants.  One can only hope that he continues to chair tribunals and classroom podia alike.