When parties to a contract or treaty decide to forego resolution of possible future disputes in the context of a national court system, they make a leap of faith. They trust in a more private system to provide them with neutral decision-makers who will treat parties to the dispute without favoritism, in accordance with the parties’ agreement, and subject to the law or principles of law the parties have chosen to govern their relationship. Once a dispute has arisen, the selection of private individuals to serve as arbitrators represents a further act of trust in individuals to render a decision on the merits with little or no recourse to the courts. It is natural for any individual so chosen to feel honored and to be sobered by this remarkable show of confidence.
Confidence is not freely given, however; it must be earned. Contracting parties, in considering the adoption of an arbitration clause, may have their qualms. National/state courts called upon to grant interim relief in aid of arbitration, or to confirm, annul, enforce or decline to enforce an arbitral award, may have their doubts about the wisdom of extending such judicial assistance to a system of dispute resolution that bypasses the court system in determining the merits.
So, what does it mean to be “pro-arbitration” in a world that still has pockets of skepticism that border, at times, on hostility? It means, at least in part, advocating in favor of an arbitral system that earns and retains confidence and reduces skepticism; with a particular focus on three basic features of arbitration: (I) the consent of the parties, (II) the procedural rules governing the conduct of the arbitration, and (III) the rules of ethics governing the conduct of the arbitrators.