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

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George A. Bermann observes in his 2018 article, “What Does it Mean to Be ‘Pro-Arbitration?’”, published in Arbitration International, that being “pro-arbitration” is a complicated proposition that requires balancing: “managing the trade-offs that competing pro-arbitration considerations entail.” Rather than being an innate quality of a particular policy or practice, it is a label or conclusion that may properly attach when that policy or practice appears to balance successfully the “trade-offs” between arbitration’s frequently conflicting goals. Thus, Prof. Bermann explains, being “pro-arbitration” often may require a wider view—one that accounts for the legitimacy of the arbitration enterprise as a whole within the broader legal and cultural landscape’s “extrinsic considerations.” 

As with many of Prof. Bermann’s observations, this gets at a core proposition worth considering in some depth.  To the extent that Prof. Bermann is correct, practitioners of international arbitration might also give some thought as to what kinds of social practices and structures are “pro-arbitration,” just as they consider what legal policies and principles are “pro-” or “anti-” arbitration developments. What kinds of social structures enhance, or fail to enhance, the competing considerations of arbitration, and, in particular, the broader legitimacy of the enterprise? This essay examines a few ways in which the international arbitration community’s social practices might be considered pro-arbitration, and how they might be made more so.