Originally from Reflections on International Arbitration - Essays in Honour of Professor George Bermann

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I. INTRODUCTION 

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.