George A Bermann
Columbia University School of Law
435 West 116th Street
10027, New York, USA
George Bermann ranks as “one of the very best in international arbitration”, able to deploy decades of experience to some of the biggest cases around.
George Bermann is both professor of law at Columbia Law School and active arbitrator in international commercial and investor-state disputes for 40 years. Among other things, he is founding member of the Governing Board of the ICC International Court of Justice, head of the Global Advisory Board of the New York International Arbitration Center, director of the Center for Dispute Prevention and Resolution (CPR) and chief reporter, ALI Restatement of International Commercial and Investor-State Arbitration.
Are you noticing any sectors undergoing an uptick in arbitration? If so, why?
Energy disputes, while never negligible, are skyrocketing in numbers. The amounts in controversy in the field are almost invariably high enough to warrant attempts at arbitration. Moreover, the market is a highly volatile one and accordingly ripe for disputes. Energy also remains the sector with the most prominent sector-specific investment protection instrument, the energy charter treaty.
A common complaint about international commercial arbitration is that the process is no longer efficient. What can arbitrators do to ensure that the arbitration proceeds smoothly and without unnecessary delay?
Arbitrators need to make efficiency considerations a priority. They can emphatically advise counsel that dilatory conduct on their part will produce consequences in the allocation of costs, and deliver on the admonition. They can also make the grant of procedural relief contingent on the grant of a corresponding benefit to its opponent. Arbitrators are well advised to avoid due process paranoia, though doing so may entail risks to the award. This is not an easy task, but it would be a highly productive one.
The current arbitration market is reportedly working with a small pool of arbitrators, and it is becoming increasingly difficult to find arbitrators who do not have a conflict of interest. Do you agree, and if so, how can this issue be effectively addressed?
The pool of highly able arbitrators is sufficiently large that a perfectly suitable conflict-free arbitrator can be found. A party may not be able to have its first choice of arbitrator, but will be very well served by others. Moreover, the prospective arbitrators most likely to have conflicts are from major law firms, most of which can sustain the loss of a case now and then. Any remedy would be worse than the disease.
As a result of the shift towards virtual arbitration, would you say that some of the London principles are less of a priority for arbitration centres looking to further their development? If so, how and why have they changed?
There is no difference from a legal point of view. Remotely conducted arbitrations still have a seat. The seat’s arbitration law is fully applicable and the courts of the seat will still retain exclusive jurisdiction to entertain set aside actions. There are practical differences, however. Convenience-related advantages and disadvantages of a seat cease to matter. An excellent example of an advantage is the elimination of visas and other entry requirements.
It seems that practitioners are increasingly competing on fees for arbitration matters. Is there a danger of a race to the bottom in terms of fees? How could this be avoided?
I do not think there is great danger. There are serious limits on the willingness on the part of firms to lower fees and serious limits on the willingness of large players to retain “discount” firms.
More and more practitioners are leaving firms to set up their own arbitration boutiques. What are the main drivers for this?
I see two main reasons. The first is avoidance or mitigation of conflicts. The other is a greater sense of professional autonomy.
What role do you see third-party funding playing in arbitration moving forward?
I see an ever-growing one and particularly valuable in enabling small and medium-sized enterprises to participate.
To what extent has the international arbitration community met the challenge of improving diversity in recent years?
The strides in favour of diversity have been dramatic in recent years, more so than might have been anticipated. However, the progress being made is largely gender-related, rather than, for example, regional or racial. This is understandable, given the extremely large numbers of women in the pool. Achieving results on other diversity fronts would need an exponential increase in numbers of candidates. This should nevertheless be undertaken.