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

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I. INTRODUCTION

In his article, “What Does it Mean to Be ‘Pro-Arbitration’?”, Professor Bermann thoroughly refutes the notion that the term, “pro-arbitration”, has a single, static meaning.  Rather, as he demonstrates, the term has many meanings; each one as legitimate as the particular one of the many goals for international commercial arbitration that it reflects. Moreover, as Bermann shows with equal force, these goals—defined at a high level as accuracy, fairness, efficiency, and enforceability—are often at odds with one another. Thus, any particular relevant policy or practice is likely both pro- and anti-arbitration, depending on which values guide one’s assessment.

Bermann provides several examples of policies that clearly illustrate these tradeoffs. Policies concerning recourse to the courts for interim relief pit an interest in the effectiveness of an award (roughly, enforceability) against interests in efficiency as well as the parties’ pre-dispute agreement on private adjudication (roughly, fairness). Questions concerning discovery and evidentiary standards often require balancing competing interests in accuracy and efficiency. And the decision about “who decides”—to paraphrase the U.S. Supreme Court opinion in First Options of Chicago v. Kaplan—whether a non-signatory is bound by an arbitration clause will almost certainly favor efficiency or fairness at the expense of the other value.