Being arbitration friendly, pro-arbitration, and pro-enforcement: why the ways in which we evaluate international commercial arbitration need to change

ABSTRACT International commercial arbitration (ICA) processes are routinely assessed as being arbitration friendly, pro-arbitration, and/or pro-enforcement (or otherwise). These evaluations are ubiquitous, yet little attention has been given to a very important matter: the extent to which the arbitration friendly, pro-arbitration, and pro-enforcement criteria are meaningful ICA evaluative tools. In this article, I critique all three. Showing them to be inadequate evaluative tools, I propose an alternative framework—comprised of efficiency, economic viability, and effectiveness criteria—that would allow us to more meaningfully understand and debate developments in the ICA field. In the course of its analysis, this article draws upon practical examples concerning ICA’s confidentiality, reforms to lex arbitri, diversity, equity, and inclusion initiatives, and ICA’s transparency in order to demonstrate the inadequacy of our field’s existing evaluative regimes and the meaningful way in which my criteria stand to change the quality of our disciplinary conversations.