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

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I. INTRODUCTION 

It is uncontroversial that a measure is “pro-arbitration” if it promotes the legitimacy of international arbitration as a dispute resolution mechanism.  However, as Bermann recognised, the determination of whether a measure is “pro-arbitration” is far from straightforward.  There is a multiplicity of metrics for evaluating whether a measure has a positive or negative effect on the legitimacy of arbitration. These metrics may further be at cross-purposes, such that a measure may have a positive impact on the legitimacy of arbitration in one respect but damage it in other respects (George Bermann, What Does it Mean to Be “Pro-Arbitration”?, (2018) 34 Arb Int’l 341, pp. 342, 344).

There is a further challenge in assessing whether a measure is “pro-arbitration”: there may be legitimate differences in the interpretation of a single evaluative metric.

A prominent example of such differences can be found in the decisions of the UK Supreme Court in Enka Insaat Ve Sanayi AS v. OOO Insurance Company Chubb [2020] UKSC 38 and the Singapore Court of Appeal in BNA v. BNB and BNC [2019] SGCA 84.  In both cases, the Courts considered the principles for determining the law of the arbitration agreement.  Both Courts agreed that, in the absence of an express choice by the parties, a clause specifying the governing law of the contract should generally be construed as an implied choice of law in relation to the arbitration agreement (Enka, ¶ 170(iv); BNA, ¶ 47).