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

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I. INTRODUCTION

As Professor George Bermann writes about in “What Does It Mean to be “Pro-Arbitration?”, the term “pro-arbitration” can have many meanings that can be used to analyze various arbitration policies. In that article, Professor Bermann states that determining whether a policy is pro-arbitration is important because in order to function at all the international arbitration field needs such policies to be approved by courts, legislatures, and users.

One type of policy to be analyzed in this context is confidentiality and privacy provisions in the international arbitration field, as “[c]onfidentiality and privacy are hallmark features in the arbitration procedure” [Roy Shapira, Mandatory Arbitration and the Market for Reputation]. As this essay illustrates, one common idea is that privacy and confidentiality provisions are pro-arbitration because these allow parties to avoid negative publicity from disputes. Thus, parties are more likely to favor arbitration because they can enjoy more privacy, and this may increase the use of arbitration in general. However, whether a policy increases the use of international arbitration is not the only consideration for determining whether the policy is pro-arbitration. As per Professor Bermann, another consideration is whether the policy promotes accuracy in the administration of justice. I will address this point below.