Document Type

Article

Publication Date

2018

DOI

https://doi.org//10.1093/arbint/aiy025

Abstract

International arbitration commentators commonly ask of a proposed policy or practice whether it is ‘pro-’ or ‘anti-arbitration’. Framing the question that way presupposes a shared understanding of what does or does not make a policy or practice arbitration-friendly. In truth, the ways in which policies or practices may affect international arbitration’s well-being are manifold. They may even distinctly serve international arbitration’s well-being in some respects while equally distinctly disserving it in others. It behooves those who take international; arbitration’s well-being seriously to acknowledge the multiplicity of metrics for identifying what is ‘pro-’ and what is ‘anti-arbitration’ and to seek the most appropriate trade-offs among them, in consideration of their respective importance in whatever trade-off is entailed. Also, too often a policy’s or practice’s friendliness to arbitration is examined through too narrow a lens. Society embraces values that are fundamental in ways that surpass – and properly outweigh – international arbitration’s interests narrowly conceived. Giving effect to those values and securing the legitimacy that confers may, even when doing so fails to advance a narrowly pro-arbitration agenda, be the most pro-arbitration move one may make.

Disciplines

Courts | Dispute Resolution and Arbitration | International Law | Jurisdiction | Law

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