Pro-Arbitration and “Pro Validitate”: Is it Always The Same? Some Reflections in Light of Swiss and French Law - Chapter 97 - Pro-Arbitration Revisited: A Tribute to Professor George Bermann from his Students Over the Years
In his inspiring article on “What Does it Mean to Be ‘Pro-Arbitration’?”, Professor Bermann stressed that there are “multiple gauges” for determining the “pro-” or “anti-” arbitration character of a given policy or practice, and proposed a “non-exhaustive catalogue” of twelve criteria to conduct that assessment, among which the question “to what extent does it ensure consent to arbitrate and enhance the scope for party autonomy?”
Consent to arbitrate is established under the law(s) governing the arbitration agreement. Such laws normally aim at ensuring and giving effect to the parties’ autonomy to enter into an arbitration agreement. The parties’ autonomy itself is, however, not necessarily pro-arbitration; it is what the parties actually want, and this may or may not be in favour of arbitration.
Thus, ensuring the validity of the arbitration agreement and enhancing party autonomy do not necessarily work in tandem. For instance, the parties may exercise their autonomy by choosing a particular law to govern their arbitration agreement, and the law so chosen may have an adverse impact on the validity of that very agreement.
More generally, the determination of the law or laws governing the arbitration agreement is an interesting topic to test “what it means to be pro-arbitration”. Indeed, some legal systems promote the idea that a “pro validitate” approach vis-à-vis the arbitration agreement is necessarily “pro-arbitration”, even if this comes at the expense of the parties’ intentions or expectations.