What Does it Mean to be ‘Pro-Arbitration’?

"Being pro-arbitration involves considering various factors and trade-offs to create a favorable environment for arbitration"

Fide Foundation and Comillas Pontifical University recently held an on-site session in Madrid, delving into the question of “What Does it Mean to be ‘Pro-Arbitration’?”

Conducted entirely in English, the session featured esteemed individuals in the arbitration field. Cristina Jiménez Savurido, President and Founder of Fide Foundation, delivered the opening remarks, setting the stage for a productive discussion. George A. Bermann, Gellhorn Professor of Law, Jean Monnet Professor of European Union Law, and Director of the Center for International Commercial & Investment Arbitration at Columbia Law School, served as a distinguished panelist, providing valuable insights. Guiding the conversation as moderator was Carlos Espósito Massicci, Professor of Public International Law at the Autonomous University of Madrid and Fide Academic Advisor. The session concluded with enlightening remarks from Diego Agulló Agulló, Assistant Professor of Private International Law at Comillas Pontifical University, and Enrique Marazuela, Director for Economic Affairs at Comillas Pontifical University.

The event proved to be an engaging platform for exploring the intricacies of being pro-arbitration, fostering meaningful discussions and knowledge exchange among participants.

Professor Bermann elucidated that the definition of pro-arbitration is often taken for granted and lacks thorough reflection. Being pro-arbitration involves considering various factors and trade-offs to create a favorable environment for arbitration. His talk explored the meaning of being arbitration-friendly and highlighted key questions in assessing pro-arbitration practices. Metrics for evaluating pro-arbitration policies include time and cost efficiencies, promotion of party autonomy, alignment with parties’ expectations, procedural flexibility, transparency, impartiality, the right to be heard, and the effective enforcement of awards. However, these metrics often compete with each other, requiring a balance of priorities. Certain arbitration practices, like written witness statements and the use of tribunal secretaries, present trade-offs that may compromise some aspects of being pro-arbitration.

Overall, embracing trade-offs and considering diverse criteria is essential to being pro-arbitration. Trade-offs should not result in paralysis but can be addressed through proportionality, cost-benefit analysis, and evaluation of comparative impairments. It is important to recognize that these trade-offs should not be solely examined through an arbitration lens. There are some extrinsic values that deserve consideration. Professor Bermann emphasized the need to bring to the table selected extrinsic considerations to safeguard the legitimacy of arbitration as a dispute resolution mechanism.

Finally, we would like to thank Jesús Saracho (member of our International Academic Council and disciple of Professor Bermann at Columbia Law School) for his efforts in making this session a reality.

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