Originally from Pro-Arbitration Revisited: A Tribute to Professor George Bermann from his Students Over the Years

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I. INTRODUCTION

Courts and legislators play an important role in ensuring that international arbitration remains pro-arbitration. However, this does not detract the “essential” actors of international arbitration from having a key role in ensuring the legitimacy and efficiency of the “international arbitration enterprise.” 

It may be an uncontroversial question asking whether an arbitrator is pro-arbitration given that the scope of his or her role is to “serve” the interest of those parties that have decided to solve a dispute through arbitration as opposed to recurring to domestic courts. The same applies to counsel who has the key role of representing, defending, and guiding parties in international arbitration proceedings. However, there may be circumstances where these actors do not act in a pro-arbitrator fashion or in a manner that they are usually expected to adopt.

Through international arbitration, parties resort to private justice as opposed to national courts to solve a dispute. Although such a decision should be thought through, there are still instances where contract signatories include an arbitration clause without having a full understanding of its effect on a potential dispute. This approach should be avoided. However, it may happen that “unsophisticated parties”—which represent a considerable component of the users of international arbitration—result in being involved in international arbitration proceedings without knowing the effect of having designated a seat in an arbitration clause, for example. This may beg the question as to whether users of international arbitration are pro-arbitration if they are not familiar with it and its features in the first instance.