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

Preview page

Professor Bermann’s 2018 article titled “What Does it Mean to Be ‘Pro-Arbitration’” elegantly describes the multiplicity of definitions of what pro-arbitration is, emphasising that there is no exhaustive list of pro-arbitration attributes. He further elaborates on the trade-offs that necessarily arise between different pro-arbitration aspects; and underlines the importance of values that are extrinsic to arbitration, such as broader legal rules or social norms. These general, broader considerations determine arbitration’s legitimacy in society and are particularly relevant. 

The former is of particular interest for this brief essay. Society and the law, in general, shape the political and legal framework in which arbitration operates. This framework can define what is generally accepted more narrowly or wider, and thereby decides whether arbitration has the necessary leeway to flourish. Arbitration has profited from tremendous support by states and stakeholders in the past, considering, for instance, that virtually every state has ratified the New York Convention, a great majority of states are contracting states to ICSID (despite recent withdrawals), and many states build on the UNCITRAL Model Law for their lex arbitri. It therefore could develop relatively freely. In the last years, however, arbitration had to defend itself before the general public and before courts and in some instances lost ground. If external stakeholders may be perceived as ‘anti-arbitration’ the question becomes how the pro-arbitration community can respond to the concerns raised.

The following briefly sketches out the relative (un-)importance of pro and anti-arbitration considerations. First, it will exemplify what it means to support arbitration’s legitimacy on a policy level if stakeholders are anti-arbitration (I.). In a second step it will look at the arbitration practice of tribunals and courts to show that pro-arbitration concerns play a smaller role there when facing anti-arbitration situations (II.).