In a 2018 article, Professor Bermann queried what it means to be “pro-arbitration.” He observed “the multiplicity of metrics” for identifying a pro-arbitration norm or practice and called upon arbitration’s stakeholders “to think more deeply than [they] customarily do about what it means to be pro-arbitration.” That prompt was incisive and timely. International arbitration is now ubiquitous; its law and practice growing increasingly complex. Despite this, participants in arbitration continue to ask whether a particular norm or practice is “pro-arbitration” when assessing whether it is favorable to arbitration as a system.
In this article, I suggest that “pro-arbitration” is too multifarious a concept to serve as a reliable yardstick for gauging the utility of norms or practices relevant to arbitration. The better approach is to acknowledge that the “pro-arbitration” label has limited normative value. Arbitration’s stakeholders should—and often already do—look past ambivalent notions of what is “pro-arbitration” to substantive considerations underlying norms or practices, as well as how they are deployed in each case. Stated differently, “pro-arbitration” is only an end. Arbitration’s stakeholders should critically examine the means taken in purported furtherance of that end.