This essay is written in honor of Professor George A. Bermann, the beloved professor of international arbitration at Columbia University School of Law in New York. Among the many things Professor Bermann has taught us, one in particular has stayed with me. We learned that being “pro-arbitration” does not mean arbitration wins in every circumstance and at all costs. In his own words, “giving effect to [fundamental society] values and securing the legitimacy that confers may, even when doing so fails to advance a narrowly pro-arbitration agenda, be the most pro-arbitration move one may make.” George A. Bermann, What Does It Mean to Be “Pro-Arbitration”?, 34 ARB. INT’L 341 (2018).
This essay addresses the most recent change to U.S. law on the waiver of the right to arbitrate, namely, the U.S. Supreme Court’s decision that a showing of prejudice is no longer required to find waiver, and explores whether that change may or may not be pro-arbitration.