Party Autonomy, Courts’ Intervention and “Pro-Arbitration” Policy: A Concatenation of Concepts Towards Arbitral Efficacy? - Chapter 101 - Pro-Arbitration Revisited: A Tribute to Professor George Bermann from his Students Over the Years
In his article, “What Does it Mean to Be ‘Pro-Arbitration’?”, Professor George Bermann explained that, if viewed in abstract terms, a policy or practice could be called “pro-arbitration” (or “arbitration-friendly”) if it advances or favors the achievement of the purposes of international arbitration. Thus, a legal system may be deemed to be pro-arbitration if the features of its arbitration regime likewise advance the purposes of international arbitration.
What amounts to the purpose of international arbitration is up for debate and certainly multifaceted, but there seems to be a consensus that parties to arbitration want to resolve their disputes in a timely and cost effective way, while minimizing the intervention of national courts, to the extent reasonably possible. Due to the flexibility of international arbitration as a dispute resolution mechanism, situations may arise where a policy that seemingly appears to be pro-arbitration may in fact be anti-arbitration, or vice versa. While the starting point for any discussion regarding the friendliness of a legal system to international arbitration is whether a legal system allows private parties to resolve their cross-border disputes through arbitration, allowing recourse to the national court either before, during, or after an arbitration sometimes creates a dilemma in determining whether a system is pro-arbitration or not. Prof. Bermann explains this dilemma in his article by referring to the “well-documented example [of] access to national courts for interim relief prior to or during the pendency of arbitral proceedings.”