In his article, What Does it Mean to Be “Pro-Arbitration”?, Professor Bermann highlighted the complexity in answering this seemingly simple question. By asking the international arbitration community to consider more closely what it really means to be “pro-arbitration,” Professor Bermann forces us all to think critically about a question, the answer to which we might otherwise have taken for granted—a prompt with which I became quite familiar during my time as Professor Bermann’s student.
Professor Bermann surveyed a number of different arbitration-related measures in the course of his article, as he examined the circumstances in which pro-arbitration considerations may come into conflict with one another, or with considerations of broader social value. Re-reading Professor Bermann’s article, it is interesting to reflect on those measures that he was not able to address and, in particular, on issues that have come into greater focus in the years since he wrote his article.
Written in 2018, Professor Bermann’s article pre-dates the onset of the global COVID-19 pandemic, for example. With the introduction of travel restrictions, lockdowns, and social distancing, the pandemic brought with it significant shifts in the way in which we practice law, to say nothing of its broader consequences.
A notable—if expected, and arguably long-overdue—development in the dispute resolution context has been the rise of remote hearings and the related increase in the use of technology. Of course, remote arbitration hearings have long existed and their surging prominence is not solely attributable to the restrictions imposed as a result of the pandemic.