What does it mean to be 'pro-arbitration'?. (21st September 2018)

• Record Type: Journal Article
• Authors: Bermann, George A
• Is Part Of: Arbitration international. Volume 34:Number 3(2018)
• Page Start: 341
• Page End: 353
• Publication Date: 2018-09-21
• Subjects: Arbitration and award, International -- Periodicals; 341.522
• DOI: 10.1093/arbint/aiy025
• Languages: English
• ISSNs: 0957-0411

Abstract

Abstract: International arbitration commentators commonly ask of a proposed policy or practice whether it is 'pro-' or 'anti-arbitration'. Framing the question that way presupposes a shared understanding of what does or does not make a policy or practice arbitration-friendly. In truth, the ways in which policies or practices may affect international arbitration's well-being are manifold. They may even distinctly serve international arbitration's well-being in some respects while equally distinctly disserving it in others. It behooves those who take international; arbitration's well-being seriously to acknowledge the multiplicity of metrics for identifying what is 'pro-' and what is 'anti-arbitration' and to seek the most appropriate trade-offs among them, in consideration of their respective importance in whatever trade-off is entailed. Also, too often a policy's or practice's friendliness to arbitration is examined through too narrow a lens. Society embraces values that are fundamental in ways that surpass—and properly outweigh—international arbitration's interests narrowly conceived. Giving effect to those values and securing the legitimacy that confers may, even when doing so fails to advance a narrowly pro-arbitration agenda, be the most pro-arbitration move one may make.