At this year’s Annual Meeting on May 20, members of The American Law Institute voted to approve the Proposed Final Draft of Restatement of the Law, The U.S. Law of International Commercial and Investor–State Arbitration. Yesterday’s vote marks the completion of this project.
This Restatement identifies the role of the courts over the life cycle of an arbitral proceeding, including enforcement of the arbitration agreement, the judicial role in arbitral proceedings, and post-award relief. It also addresses the ways in which the basic principles governing U.S. court involvement in investor–State arbitration in some instances are different from those applicable to international commercial arbitration generally.
This is the first time that The American Law Institute has produced a Restatement on this area of the law. Work began in 2007 under the leadership of Reporter George A. Bermann of Columbia Law School and Associate Reporters Jack J. Coe, Jr., of Pepperdine University School of Law, Christopher R. Drahozal of the University of Kansas School of Law, and Catherine A. Rogers of both Penn State Law at University Park and Queen Mary, University of London.
“The Restatement assumes a choice has been made to have the merits of a dispute resolved in an arbitral setting rather than a court setting, but you haven’t escaped the courts,” said Professor Bermann. “Our Restatement focuses on what courts are asked to do and, among the things they’re asked to do, what they are willing to do. Essentially we have three phases in the life cycle of an arbitration where a court is invited to intervene: launching the arbitration, arbitral proceedings, and post-award.”
The ALI Council first approved this project as Restatement of the Law, The U.S. Law of International Commercial Arbitration. Subsequently, as a result of the increasing salience of investor–State arbitration, the project was renamed Restatement of the Law, The U.S. Law of International Commercial and Investor–State Arbitration, and the coverage was expanded.
“Arbitration plays a very significant role in the resolution of international commercial disputes,” said ALI Director Richard L. Revesz. “Although governed by statute, the law in this field is largely judge-made and not well understood. Therefore, it is an area of law that will benefit from the clarification found in this Restatement. I am enormously grateful to all the Reporters, who have worked very hard on this project for more than a decade. We also benefited greatly from the expertise of the Advisers and Members Consultative Group, without whom this work would not have been possible.”
“We have really been fortunate to have very committed, prepared, and exceedingly collegial Advisers and Members Consultative Group participants involved throughout this process,” said Professor Bermann. “From an intellectual point of view, from a professional gratification point of view, this is a highlight. Apart from teaching, to which I am addicted, this has been the most joyous professional exercise in which I’ve been involved. It has been so intellectually challenging in ways that what we do on a daily basis doesn’t quite reach.”
With the approval of the Proposed Final Draft, the Reporters will now prepare the Institute’s official text for publication. Until the official text is published, the Proposed Final Draft approved by ALI’s Council and membership is the official position of ALI, and may be cited as such.