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

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As Professor Bermann reminds us, the question of what it means to be “pro-arbitration” is too often examined through a narrow lens (George A. Bermann, What Does it Mean to Be “Pro-Arbitration”?, 34 ARB. INT’L 341, 341 (2018)).  Rather than assessing a practice or policy only by reference to values narrowly associated with arbitration, such as party autonomy and procedural efficiency, counsel and arbitrators alike should reflect both on the trade-offs between pro-arbitration considerations and on the importance of extrinsic considerations to the well-being of international arbitration. In the final analysis, it is extrinsic values such as fairness, professionalism, and transparency that determine arbitration’s legitimacy.  

The importance of extrinsic values is apparent in the uptake of practices that seem not to advance arbitration’s interests narrowly conceived.  For example, although soft law instruments such as the IBA guidelines on party representation and conflicts of interest impose constraints on traditional notions of autonomy and efficiency, they are nevertheless embraced because they promote broader norms of fairness and professionalism.

This reflection addresses an altogether more divisive practice: the grant of anti-arbitration injunctions.  It describes the approach taken by Australian courts to this remedy, and considers whether anti-arbitration injunctions enhance or diminish the legitimacy of international arbitration.