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 a trite observation that being “pro-arbitration” means being friendly to arbitration.  Writing in 2018, Professor Bermann reminded the arbitration community of the facile nature of this definition and took on the arduous task of identifying more nuanced criteria for determining whether a policy or decision is “pro” or “anti” arbitration.   That led him to consider the role played by values extrinsic to the narrow confines of arbitration.  In a world where arbitration’s legitimacy is often called into question,  Bermann suggested expanding the meaning of pro-arbitration to include consideration of extrinsic values.  The proposition was that trade-offs between arbitration and extrinsic values should be considered “pro-arbitration” because they “enhance international arbitration’s legitimacy overall” even though they might have an adverse effect on “international arbitration’s interests narrowly conceived.” 

Bermann limited his inquiry to commercial arbitration, deciding specifically not to engage with investor-State arbitration.   But it is investor-State arbitration where the call for such trade-offs has been loudest.  A series of responsive measures have been underway, ranging from incremental to invasive.   Incremental changes involve the introduction of discrete reforms to the current process of investor-State arbitration.  Invasive changes entail the more drastic measure of dismantling investor-State arbitration.   The European Union (EU) has been at the forefront of seeking these trade-offs—systematically removing the possibility of investor-State arbitration for disputes between EU investors and EU Member States (intra-EU arbitration), while allowing arbitration of disputes between extra-EU investors and EU Member States (extra-EU arbitration) to continue.