Top of the Heap

Professor George A. Bermann and a host of recent graduates work to further enhance Columbia Law School’s tradition of excellence and achievement in the field of international arbitration

By Amy Feldman

Spring 2012

During a recent meeting in his seventh-floor office at Columbia Law School, Professor George A. Bermann ’75 LL.M. reaches for and then holds up a yellow paperback volume. It is a draft chapter of the massive Restatement of the U.S. Law of International Commercial Arbitration that he has been hard at work on for years. Bermann opens to a random page, reads a line of black letter law, and then excitedly explains the analysis that follows. Like a Talmudic scholar dissecting a text, he takes apart the law of international arbitration, and then agilely puts it back together again—asking questions that at first blush may seem arcane, but that get at the heart of the controversies and questions arising in this increasingly important field.

“People are energized by this,” says Bermann, who has been teaching at Columbia Law School since 1975. “The Restatement encompasses all the conflicts of law questions.”

With respect to any area of international law, conflicts of law questions loom large, he says, but in the field of international arbitration—where a company in the Netherlands may have a dispute with a company in Brazil that is heard by a tribunal in Singapore—such questions form the core of the practice. Bermann adds that the arbitration process, which is generally speedier, less costly, and more flexible than litigation, offers advantages that are even more pronounced in the international realm, where both sides get to pick judges for the hearing and neither is forced to appear before a foreign national court. It offers an elegant, efficient venue for dispute resolution, and as the Jean Monnet Professor of EU Law and Walter Gellhorn Professor of Law, Bermann is the latest in a long line of Law School scholars to reside at the forefront of the discipline.

Columbia pioneered the study of international law even before Columbia Law School’s founding in 1858, and the Law School led the way in the earliest days of international arbitration, which developed as a way for parties from different nations to resolve their disputes without going to court. Henry deVries, a Law School professor until his death in 1986, penned the first law review article on international arbitration in 1982. The Parker School of Foreign and Comparative Law, established in 1931 by the will of Judge Edwin B. Parker for studies of international commerce and U.S. foreign relations, became a focal point for international arbitration scholarship under the leadership of professors Willis L.M. Reese (who passed away in 1990 at the age of 77) and, especially, Hans Smit ’58 LL.B. (who passed away in January at the age of 84).

Smit, a towering figure in international arbitration who had taught at Columbia Law School since 1960, founded the field’s first U.S.-based scholarly journal, The American Review of International Arbitration. Students fondly remember the tall Dutchman for regaling them with stories from the front lines of arbitration. United States Supreme Court Justice Ruth Bader Ginsburg ’59 counted Smit as an important mentor while she was a Columbia Law School student and during the time she served as the school’s first female tenure-track professor. “Like Odysseus,” Ginsburg recalled at Smit’s recent memorial, “he was a man never at a loss.”

Bermann credits both Smit and deVries with sparking his own interest in international arbitration. When Bermann arrived at the Law School more than 30 years ago, his focus was the law of the European Union—he is also director of the school’s European Legal Studies Center—but he soon realized the importance of this increasingly relevant field. “International arbitration became the place for a lot of comparative law activity,” Bermann recalls. “Being a colleague of Henry deVries and Hans Smit encouraged that, and being at Columbia is being at the heartbeat of arbitration in the U.S.”

Between them, Smit and Bermann have trained hundreds of arbitration attorneys whose practices now span the globe. And those practitioners are in higher demand than ever. The big macroeconomic trends of the past decades—increased globalization, more transborder contracts, the advanced complexity of disputes when things do go wrong—have led to a boom in international arbitration. In 2011, the International Chamber of Commerce’s International Court of Arbitration, one of the field’s leading bodies, received 796 hearing requests and issued 508 arbitral awards, up from 521 requests and 325 awards in 2005.

“The big picture is that, for a variety of reasons, international arbitration has grown dramatically over the years as an alternative to national court litigation,” says Bermann, noting that the field encompasses both investment arbitrations, such as disputes between big oil companies and the countries where they operate, and commercial arbitrations, which involve contract disputes between companies located in different countries.

When Global Arbitration Review, the field’s leading publication, named its list of the top “45 under 45” international arbitration practitioners, five Columbia Law School graduates—Julie Bédard ’01 LL.M., ’06 J.S.D.; Sébastien Besson ’00 LL.M.; Cristian Conejero Roos ’03 LL.M.; Ank Santens ’99 LL.M.; and Gaëtan Verhoosel ’00 LL.M., ’01 J.S.D.—made the cut. In a field that attracts multilingual global citizens, these five fit right in. They represent five nationalities (Belgian, Canadian, Chilean, French, and Swiss), live in four different countries (Spain, Switzerland, the U.S., and the U.K.), and practice in six languages (English, French, German, Spanish, Portuguese, and Dutch). “They are the top of the heap,” Bermann says. “These are the stars.”

 

In detailing their reasons for pursuing international arbitration careers, Columbia Law School’s representatives on the “45 under 45” list provide answers marked by a level of variety that one would expect from such a diverse group. But amid tales of inspirational professors and dissertations on international legal conflicts, one thing seems to come up again and again. International arbitration, they say, presents practitioners with a seemingly endless array of interesting cases and clients. Just about any type of dispute that might have been resolved in court can find its way to an arbitration hearing—disagreements over payments in cross-border acquisitions, disputes over trade subsidies, squabbles over exclusive marketing agreements, decisions regarding rules for the election of the president of the World Chess Federation, and everything in between. “It just never gets boring, because every case is a different story and involves different cultures, different industries, and different casts of characters,” says Gaëtan Verhoosel, a partner at Covington & Burling in London and a co-chair of the firm’s international arbitration practice.

Verhoosel, a native of Belgium, started his arbitration career at the legal office of the World Trade Organization (WTO) after writing his doctoral thesis at Columbia Law School on WTO dispute resolution. Two years later, seeking a broader diversity of cases, he joined a New York City law firm. Today, his practice spans commercial and investment arbitrations, with cases ranging from insurance disputes involving oil refiners in the Baltics to investment arbitrations involving countries from Latin America to Asia.

Julie Bédard, a partner at Skadden, Arps, Slate, Meagher & Flom in New York City, echoes Verhoosel’s sentiments regarding the diversity of experiences and opportunities that exist for international arbitration practitioners. She also highly values the intellectual challenges involved in working with companies in Latin America, where much of her practice is focused. “This work allows me to live a passion,” says Bédard, who considered becoming an academic before joining Skadden. “The international litigation and arbitration cases are exciting. I was lucky that they turned out to be as much fun as I thought they would be.”

Bédard—a French Canadian who works in English, French, Spanish, and Portuguese—notes that the commercial arbitration matters she handles tend to stay more private and lower in public profile than comparable litigation or investment treaty arbitration, but that does not mean there is less on the line. Commercial arbitration disputes can be extremely layered and involve large sums of money. Construction arbitrations, for example, typically involve giant industrial endeavors, such as power plants or chemical factories, and usually necessitate the inclusion of governmental entities.

“The first time I worked on a construction case, it was like I was listening to Mandarin,” says Cristian Conejero Roos, a partner in the Madrid office of Cuatrecasas, Gonçalves Pereira. “These cases are very much driven by how the industry behaves. The rule of law plays a secondary role to what is customary in the industry.”

The involvement of governments in arbitration matters sometimes raises the stakes. Ank Santens, a partner at White & Case in New York City, currently represents the government of a European state in a post-privatization dispute involving a company of major strategic importance to the country. “The buyer sold the company, and the privatization agreement said that the country would get 10 percent of the profit on an on-sale,” Santens says. “But the buyer claims that nothing is owed.” On the table: $80 million the country is demanding under the agreement.

“It’s not uncommon for these cases to go on for several years, particularly when the financial stakes are high,” says Verhoosel, a veteran of numerous investment arbitrations with governments. “These are invariably fascinating cases because they often have a political dimension.” That “political dimension,” it should be noted, is not always a positive.

Conejero Roos points to a recent arbitration in which his client was involved in a dispute with a state entity in an Arab country. There were complications, and delays, and lots of fiddling with procedural issues, he says. “The case was in French, and they presented pleadings in Arabic,” Conejero Roos adds with a sigh. “It shows the things you may encounter when a state party does not want to take part in the arbitration.”

Of course, it’s not uncommon for Law School graduates practicing international arbitration to have to deal with such tactics and procedural parlor games from another perspective. Santens and Sébastien Besson, a partner at Python & Peter in Geneva, for instance, work both as counsel and as arbitrators. “They are completely different jobs, but very complementary,” Besson says, “because as an arbitrator you realize what has influenced your decision, and that allows you to be a better counsel.” He adds that although arbitration flourishes in good and bad economic climates, the types of cases arising over time and in different regions change. As the debt crisis has gripped Europe, for example, new disputes have surfaced about lack of payment, lack of delivery, and a variety of issues related to cost cutting, along with concerns about whether awards will be enforceable. Meanwhile, in places such as Asia and South America, where some economies are booming, arbitrations are becoming even more common and are providing new opportunities for attorneys.

 

Back at Columbia Law School, increasing numbers of students are showing interest in arbitration work. “Course enrollments have skyrocketed,” George Bermann says, proudly adding that Law School students make up one of the largest student arbitration groups in the country, the Columbia International Arbitration Association, which hosts the annual Columbia Arbitration Day. And each year, Law School students compete in the Willem C. Vis International Commercial Arbitration Moot Court.

Bermann, meanwhile, remains hard at work on his magnum opus: the Restatement of the U.S. Law of International Commercial Arbitration. It is a massive undertaking that is now about halfway finished and will be done in a few years. When the publication is complete, the Restatement will be an authoritative guide to U.S. courts on the law of international commercial arbitration, while also providing an invaluable road map for practitioners. While plowing forward on the volumes, Bermann has maintained a steady focus on ensuring that Columbia Law School continues to enhance its lofty reputation as the world leader when it comes to international arbitration scholarship and teaching. “We’re about to launch an international arbitration center at the Law School,” he says. Bermann speaks in superlatives about the benefits of such a center—for students, faculty, visiting scholars, and practitioners generally. He loves nothing more than continuing to build upon the contributions of Hans Smit, Henry deVries, and others who came before him. “The new center,” he says with a smile, “will provide an institutional home for arbitration at Columbia.”

Amy Feldman has written for The New York Times, Money, and Time, among other publications.