Editor's Note: The Second Seminar of the International Commercial Expert Committee of the Supreme People's Court and Appointment of New Members of the International Commercial Expert Committee was held successfully on December 8, 2020. The theme of this seminar is the Latest Developments of International Commercial Dispute Resolution Mechanism and the Research on Relevant Issues on International Law. The participants, on site or virtually, had discussions on the two topics, the Development of International Commercial Dispute Resolution Mechanism: New Situation and New Challenges and the Research and Application of International Law Related Issues in the Post-Pandemic Era, respectively. The texts of speeches delivered by the participants would be posted on the CICC's website. 

When is "Consent" Clear and Unmistakable-- The Enduring Problems in International Arbitration

George A. Bermann

Professor of Columbia University School of Law

Thank you and thank you for allowing me to join you today. I'm sorry I'm not there in person. What I wanted to talk about is not so much the impact of Covid-19 on arbitration, which I understand some concern today. But a more basic question that we can't overlook. That is the question of the importance of consent to arbitration, put in another way, the importance of legitimacy of arbitration, to which consent contributes.

Curiously, incidentally, coincidentally, on the day of your conference, which is Tuesday Dec. 8th, the Supreme Court of the United States is going to hear a case that touches directly on the issue I just raised. I want to share it with you. It's the case you're going to hear about. It is well-established in US law by the US Supreme Court that parties are entitled to access to a court to challenge the existence of an arbitration agreement, the validity of an arbitration agreement, whether a dispute falls within the scope of the arbitration agreement, whether they are bound, even though they didn't sign the arbitration agreement. These are four questions that we call questions of consent. 

And it is standard in American law that you have a right to access to record on those questions. You aren't obligated to go to court. You're obviously free to raise those questions before the arbitral tribunal. And the arbitral tribunal will answer those questions, by an exercise of competence-competence. But the interesting development is that the Supreme Court has said, just as you have a right to access to a court on questions of consent, you also have a right to relinquish that right. But that right you go to court is so important that you can relinquish it only if you do so clearly and unmistakably. So the question that now have arisen is when and how do you clearly and unmistakably indicate your willingness to give up your right to go to court. And the question that the court will address on Tuesday, December 8th, is whether you clearly and unmistakably give up your right to access to a court, merely because you agreed to arbitrate under an institution whose rules containing Competence-Competence clause. But differently, it is Competence-Competence clause in the rules of the institution, is that enough in and of itself to constitute clear and unmistakable evidence of a willingness to relinquish your right to have access to a court. That is a very big question. 

Now, on that question, I'll share with you in a very few minutes. Firstly, the fact that a tribunal has competence to determine its competence does not mean that a court doesn't have competence to determine the tribunal’s competence. It means such a tribunal, if its competence challenged, can determine that question. It doesn't mean that a court has no right to determine that question. If you bring it to a court as is your right under American law. 

Secondly, the Federal Arbitration Act in the United States, and even more importantly, the New York Convention, Article II provides that a court is to compel arbitration unless the arbitration agreement is null and void that means that the Court has the authority to determine issues of consent. 

Finally, the purpose of establishing the rule that relinquishment of the right to have access to court requires clear and unmistakable evidence, the reason was to create a strong presumption in favor of your having that right, and making it an exception that you don't have that right or that you have given up that right. Now, let us recognize that every modern arbitration law, and every modern set of institutional rules contain Competence-Competence clauses. Competence-competence clauses are everywhere. If they are everywhere, then giving up your right to access to a court ceases to be the exception, and it becomes the rule. And your right to have access to the court ceases to be the rule, and becomes the exception. 

So, what the Supreme Court is going to consider on Tuesday are really two questions. How important is consent to the legitimacy of arbitration? And how important is it that you do, in fact, clearly and unmistakably agree to give up your access to the legitimacy of arbitration? Because it is the legitimacy of arbitration that is at stake. And I conclude with the observation that it is actually pro-arbitration to uphold the principal of consent. Thank you very much.

Related Links: 【研讨会主题发言十四】乔治·贝尔曼：如何确立“同意”的明确性与准确性标准——国际仲裁中的常见问题

*The original text is Chinese and has been translated into English for reference only. If there is any inconsistency or ambiguity between the Chinese version and the English version, the Chinese version shall prevail.