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

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I. INTRODUCTION

The concept of “pro-arbitration” (or “arbitration-friendliness”) refers to the tendency of a policy or a practice to promote such things as party autonomy, a certain procedural flexibility, cultural neutrality, enforceability of agreements to arbitrate and arbitral awards as well as parties’ legitimate contractual expectations.

In his reflections on what it means to be pro-arbitration, Prof. George Bermann has shed light on two constraints that prove integral to the expansion of international commercial arbitration. First, a pro-arbitration strategy necessarily entails managing trade-offs among pro-arbitration considerations.  A policy or a practice that achieves some of international arbitration’s purposes may well disserve others. For this reason, compromising between pro-arbitration values is almost inevitable. This is what Prof. Bermann calls the “pro-arbitration trade-offs.” An example of competing pro-arbitration considerations may be found in the availability of interim relief from national courts in conjunction with arbitration.  The intervention of domestic courts may be seen both as contributing to the effectiveness of the arbitration proceedings and as undesirably interfering with party autonomy. Another illustration lies in the constant challenge for arbitrators to reconcile efficiency with their obligation to avoid annulment of the subsequent award on due process grounds.