Professor Bermann’s article titled “What Does it Mean to Be ‘Pro-Arbitration’?” is a very welcome and provocative piece on what counts as pro-arbitration. He explores the extent to which pursuing a pro-arbitration path, in one sense of the term, may operate at cross-purposes with what may legitimately be considered as pro-arbitration in one or more senses of the term so that trade-offs become inevitable. In this piece, I discuss my reflections on whether an Attorney-Eyes-Only order is pro-arbitration and consider the competing considerations at play and the necessary trade-offs.
To determine whether a practice is pro-arbitration, Professor Bermann helpfully draws on Professor Park’s non-exhaustive list of 12 criteria by which a practice or policy’s pro or anti-arbitration character is measured. A closer look at the 12 criteria reveals that half of them are concerned with the process of arbitration. This is unsurprising since it is the process that legitimises the award.
• To what extent does it effectuate the likely intentions or expectations of the parties?
• To what extent is it consistent with the lex arbitri or the institutional rules chosen by the parties?
• To what extent does it, consistent with party intent, enable the tribunal to exercise sound discretion and flexibility on matters of arbitral procedure?
• To what extent does it protect a party’s right to be heard?
• To what extent does it ensure that the resulting award will be an effective one?
• To what extent does it enable the resulting award to withstand challenges in an annulment or enforcement action?