It is frequently suggested that the crux of what makes the United States a “pro-arbitration” jurisdiction is the federal policy favoring arbitration for the settlement of commercial disputes where parties have an arbitration agreement. Indeed, American practitioners of arbitration and arbitration-related litigation frequently are closely familiar with the question of whether a state law rule is at its core “pro-arbitration,” when arguing before U.S. courts whether the rule in question is preempted by federal policy favoring arbitration for the resolution of commercial disputes.
Processes for the fast-tracking of arbitration, such as delegation to the arbitrator of the question of consent to arbitration (where the prescribed arbitral rules allow such determinations), are viewed by several federal court circuits in the US as being “pro-arbitration” and thus incorporated into and promoted by federal public policy. Conversely, state law rules or civil procedures that are deemed to undermine the arbitral process may be overridden by federal public policy. As a result, the question of whether a particular rule or aspect of arbitration is “pro-arbitration” is not only determined by, but itself also shapes, the contours of the federal policy favoring arbitration.
Among the profound insights in Professor Bermann’s formative article “What Does it Mean to Be ‘Pro-Arbitration’?” is the recognition that there are effectively two levels of inquiry of arbitration-friendliness, each involving frequently contradictory factors to be considered and weighed.