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

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In 2017, Professor Bermann gave me a choice: write a 4-page essay on EU law and investor-State arbitration, or survey Gary Born’s 4000-page International Commercial Arbitration (2d ed.) with two classmates for any mention of what it means to be “pro-arbitration”. Fortunately—particularly for the purposes of this essay—I chose the latter.

At first glance, Born offers 17 particular mentions of “pro-arbitration” in his treatise. There you have it:  research project complete, what a bargain.  As with all things, however, the devil is in the details.  Even a casual reader will quickly realize that “pro-arbitration” considerations permeate Born’s text, with every phase of the arbitral process (as well as arbitration’s relationship to domestic courts) necessarily implicating “pro-” and “anti-” arbitration policy choices and concerns. From those 17 initial references, at the end of our review, we identified 141 instances of pro-arbitration reasoning, several in each chapter.

Importantly, Born’s treatise is largely descriptive. He does not explicitly advocate for what is or is not “pro-arbitration.” Rather, he sets out how certain processes and policy choices support or undermine the arbitral process.