Questions about whether a policy is “pro-arbitration” tend to focus on post-dispute issues. Will the arbitration be speedy and cost efficient? Does it respect party consent and autonomy? Does it give parties the right to be heard? Does it expand—or at least maintain—the kinds of claims that may lawfully be submitted to arbitration?
Professor Bermann’s wise contribution to these questions was about legitimacy: “a policy or practice may disproportionately favour a pro-arbitration consideration at the expense not only of other pro-arbitration considerations but also at the expense of considerations that are largely extrinsic to arbitration, but nevertheless of considerable social value or utility.” (George Bermann, What Does it Mean to Be “Pro-Arbitration”?, 34 Arb. Intl. 341, 349 (2018)). “In fact, acknowledging legitimacy—measured in terms of extrinsic values—as in itself a pro-arbitration attribute may be among the most arbitration-friendly moves one can make.” (Id. at 353).