Towards Greater Clarity and Consistency: International Arbitration Set to Receive US Restatement Treatment

On May 20-22, 2019, at the annual meeting of the American Law Institute in Washington, DC, members will vote to adopt the first Restatement of the US Law of International Commercial and Investor-State Arbitration.

US Law of International Commercial and Investor-State Arbitration.

The Restatement aims to describe the intersections between US courts and international arbitration and provide guidance to courts in relation to these intersections over the life-cycle of arbitral proceedings. Chapters include, for instance, Enforcement of the Arbitration Agreement (Chapter 2); The Judicial Role in Connection with the Arbitral Proceeding (Chapter 3); Post-Award Relief (Chapter 4); and Investor-State Arbitration (Chapter 5). For a complete table of contents, click here

The project is unique within the history of Restatements of American law. Typically, Restatements are distillations of state law and common law (of torts or contracts, for example); the Project Reporters and Associate Reporters gather court decisions from the various states, reconcile discrepancies and offer a uniform rule. This Restatement is based on a Federal statute, the Federal Arbitration Act, and US Supreme Court interpretations of that statute. It is aimed at defining what international arbitration is, how national courts may interpret and apply its basic principles, and elucidates the peculiarities of US enforcement law.

According to Project Reporter, Professor George Bermann, the Restatement “is designed, chapter-by-chapter, to focus on what courts are asked to do, and among the things they’re asked to do, what are they willing to do. If they’re willing to do it, how do they go about doing it.” The Restatement aims at greater uniformity and predictability of court actors and promises to be most instructive in articulating the dynamic between courts and arbitral tribunals when dealing with arbitration questions.

The Restatement’s articulation of that dynamic will be evidenced in its treatment of such questions as the dissimilar US jurisprudence on: gateway arbitrability; the meaning of a foreign or non-domestic award; the grounds for challenging the recognition and enforcement of a foreign award; the grounds for setting aside a domestic award; and the procedures for enforcement of ICSID awards as compared to UNCITRAL awards.

This article was co-authored by Jason Rotstein.  

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