Faculty abroad: Mesut Akbaba

Mesut Akbaba, doctoral student and former research assistant at the Bucerius Law School CIDR, tells us about his doctoral research project and his research stay as a Visiting Scholar at Columbia Law School in New York.

Research & Faculty |

What is your field of research? 

I am conducting research in arbitration, constitutional, and human rights law. In my thesis, I challenge the existing dogma in arbitration that arbitral tribunals require the consent of the parties, who are ultimately bound by the tribunal's decision, to establish jurisdiction over them. I focus primarily on German and US (constitutional) law as well as the European Convention on Human Rights. My thesis supervisor is Prof. Stefan Kröll.


What makes your area of research relevant?

Arbitration is used as a dispute resolution mechanism alternative to litigation in state courts in many areas such as (international) commerce and sports, but also in employment relationships and contractual relationships between businesses and consumers. The widespread use of arbitration is a global phenomenon. Simultaneously, arbitration is under a lot of scrutiny and critique.

One point of criticism is that, as pointed out above, in theory, arbitral jurisdiction must be based on party consent (mainly for constitutional and human rights reasons). Yet, arbitral practice arguably differs from that, and the role of consent is declining: In a not insignificant number of cases, party consent is seemingly fictitious, otherwise flawed, or even clearly non-existent.

Although, if true, this would be a hard disruption between theory and practice, the issue does not seem to receive much attention. This is problematic for especially two reasons: First, the issue is too important to ignore, as it has constitutional and human rights implications and raises questions about the legality of such arbitral proceedings. Second, addressing these questions more openly and outside of the legal niches in which they arise more frequently holds great potential as the answers found could lead to a broader legitimization of arbitration in general.

With my research, I, therefore, hope to contribute to the international legal discourse by shedding some more light on this issue.


What motivated you to pursue a research stay in the US?

I was primarily motivated by the fact that the US legal system is one of the legal systems I focus on in my comparative research. There are two main reasons for this: First, similar to many other constitutions, the US Constitution provides different safeguards for access to justice, including access to state courts. Simultaneously, however, the US offers several examples of the supposed decrease of consent’s importance, like mandatory arbitration and statutory provisions that require parties to consent to arbitration.

Second, the approach taken by US courts concerning the extension of arbitration agreements to third parties – often also considered a question of consent – is regarded as one of the two main schools of thought on the subject. For these reasons, US case law and academic debate are much more developed compared to other jurisdictions which makes the US legal system an ideal field of study.

In addition, in a field as international as arbitration, any solution developed can only be successful if implementable in many different jurisdictions. New York City is a major arbitration hub, regarding both academia and practice. Therefore, they attract many international scholars and practitioners of the field. With this in mind, I also wanted to use my stay for exchange with these scholars and practitioners to better understand the difficulties of implementing possible strategies in many different countries.


Could you share some impressions from your time abroad?

To put it simply, I had a great time in New York and at Columbia Law School (CLS). New York is one of the most culturally diverse, exciting, and inspiring places in the world to spend half a year at. Especially experiencing three seasons in the city and having enough time to get to know its people and many of its neighborhoods in different boroughs made the stay very special on a personal level.

Professionally, the stay exceeded my expectations as well. Of course, the impressive collection of legal materials at CLS was a great benefit for my research. More important, however, was the personal exchange with scholars and practitioners. For example, I benefitted immensely from my conversations with Professor Henry Monaghan and Prof. George Bermann of CLS, and Professor Franco Ferrari of NYU Law School.

I also had the great opportunity to talk to other CLS Visiting Scholars – outside and within the framework of the Visiting Scholars Forum at which I presented my research – and many CLS LL.M. students. Both of these groups gave me a lot of insights into how the issues I am analyzing work in their home countries. Hence, this opened a lot of new perspectives for my research.

Finally, I was able to speak with the many practitioners, I got to know, e.g., at the countless arbitration events in NYC, about whether my findings and suggestions for solutions would be, from their experience, useful in practice.

As a bonus, the motivating and vibrant arbitration community at CLS and in New York led to other professional opportunities as well. These include the contribution to an international publication project and the co-organization and moderation of a panel discussion at CLS.

Therefore, I am immensely thankful to the Joachim Herz Foundation, Der Übersee-Club e.V., and the Hapag-Lloyd Foundation for their generous support as well as to Prof. Stefan Kröll, Prof. Karsten Thorn, Prof. Henry Monaghan, and everyone else involved for making this great experience possible.


Mesut, thanks for the interview.