Rescuing the Federal Arbitration Act: The New Restatement on International Arbitration

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The Restatement of the U.S. Law of International Commercial and Investor-State Arbitration, like all Restatements, consists of three parts. It consists of a code-like presentation of the law, popularly known as “Blackletter,” drafted as clearly and concisely as reasonably possible. The Blackletter of each section of the Restatement is followed by “Comments,” designed to explain the basic rationale or rationales for the positions taken. The Comments are in turn followed by “Reporters’ notes,” which present, sometimes at considerable length and in considerable detail, the case law and, in some instances, the legal scholarship upon which the Restatement drafter relied. Even authority contrary to the position taken by the Restatement will be acknowledged and cited.

In this article, I identify the issues arising in the Restatement that either have the greatest significance or aroused the greatest controversy. They are here arranged according to the occasion over the life cycle of an arbitration in which those issues arise. These occasions are three: judicial enforcement of an arbitration agreement, judicial involvement in an arbitral proceeding, and judicial actions to set aside or enforce an award.


Dispute Resolution and Arbitration | International Law | Law

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