{"id":333665,"date":"2024-10-23T15:30:26","date_gmt":"2024-10-23T10:00:26","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=333665"},"modified":"2024-10-23T16:47:39","modified_gmt":"2024-10-23T11:17:39","slug":"navigating-twilight-issues-international-arbitration-insights-professor-george-bermann-icdr-india-conference","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2024\/10\/23\/navigating-twilight-issues-international-arbitration-insights-professor-george-bermann-icdr-india-conference\/","title":{"rendered":"Navigating \u201cTwilight Issues\u201d in International Arbitration: Professor George A. Bermann at the ICDR India Conference"},"content":{"rendered":"
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Professor George A. Bermann from Columbia University School of Law discussed a project supported by the ICDR, and several key themes related to international arbitration in his keynote address. He emphasized the importance of bridging the gap between academic theory and practical application in arbitration.<\/p>\n

A major focus of his talk was on “twilight issues”—recurring challenges that often arise during arbitration but lack adequate guidance. He noted that, despite extensive experience, many panels struggle with these critical issues, which can lead to inconsistent outcomes.<\/p>\n

Professor Bermann also shared insights from his recent publication, highlighting the necessity for clearer understanding and guidance on these matters. His aim is to enhance the effectiveness of arbitration by addressing these gaps, making his work relevant for both practitioners and academics alike.<\/p>\n

Professor George A. Bermann addressed several significant “twilight issues” that arise throughout the lifecycle of international arbitration, emphasizing their often-ambiguous nature. He defined these issues as neither strictly substantive nor procedural, illustrating how arbitrators sometimes feel in the dark about how to navigate them.<\/p>\n

To begin, he identified common challenges that surface early in the arbitration process, such as the non-signatory problem. While this issue is familiar to practitioners, Professor Bermann highlighted the lack of clear guidance for tribunals. In domestic courts, established forum law offers answers, but international tribunals operate without such clear frameworks. Questions arise about when a non-signatory can bring or face a claim and when a party has waived its right to arbitration. These are complexities that regularly challenge arbitrators.<\/p>\n

He remarked that as the arbitration progresses, other recurring issues emerge, including the authority of the tribunal to issue anti-suit injunctions. Professor Bermann also posed questions about the extent to which a tribunal can restrain judicial proceedings in another jurisdiction and the criteria for exercising that authority.<\/p>\n

Professor Bermann highlighted the concept of ‘res judicata<\/span>’ as another critical twilight issue in international arbitration. He said that unlike courts, which have a well-established doctrine of res judicata to prevent re-litigation of resolved issues, arbitrators often lack clear guidelines on how to handle this principle.<\/p>\n

Professor Bermann noted that his most recent expert opinion focused on how tribunals should address arguments related to res judicata, reflecting its significance in arbitration practice.<\/p>\n

Professor Bermann emphasized that these issues are not obscure; they occur regularly in arbitration. However, the lack of sufficient guidance on these matters remains a significant challenge, which the project aims to address. By bringing these twilight issues into the light, he hopes to enhance the understanding and effectiveness of international arbitration practices.<\/p>\n

He also touched on issues of privilege and testimonial privilege and questioned whether tribunals have the authority to conduct independent research. These topics illustrate the nuanced challenges arbitrators face, underscoring the need for clearer guidance on these twilight issues to enhance the effectiveness of international arbitration.<\/p>\n

In addressing the twilight issues in international arbitration, Professor George A. Bermann outlined how tribunals currently navigate these complexities and what they could do to improve their approach.<\/p>\n

He said Tribunals often look to national law as a fallback when faced with twilight issues. There are four main sources they might consult:<\/p>\n