American Law Institute approves two chapters of Restatement on international arbitration

UNIVERSITY PARK, Pa. – The membership of the American Law Institute (ALI) this month approved Chapter Two of the Restatement of the Law, The U.S. Law of International Commercial Arbitration at the organization’s 92nd Annual Meeting in Washington, D.C. Catherine Rogers, professor of law and Paul and Marjorie Price Faculty Scholar at Penn State Law, is one of four reporters for the international arbitration Restatement, and has been working on the project for approximately six years.

Tentative Draft No. 4, which includes a few definitions from Chapter 1, and Chapter 2 on the Enforcement of the Arbitration Agreement, was approved following a presentation by the Restatement’s reporters. In addition to Rogers, the reporters are George A. Bermann of Columbia Law School, Jack J. Coe Jr. of Pepperdine University School of Law, and Christopher R. Drahozal of The University of Kansas School of Law. The project session at the Annual Meeting was moderated by Richard L. Revesz of The New York University School of Law.

Restatements are a revered feature in U.S. law. The ALI selects areas of law that are distilled or “restated” by leading scholars to provide guidance to courts and practitioners in the relevant field. In form, a Restatement is a series of “black letter” rules and related commentary with “Reporters’ Notes” that explain and analyze the underlying case law. In making a Restatement, selected legal scholars, called reporters, produce a draft, which is then extensively vetted by a range of carefully selected advisers and consultants and ultimately approved through ALI processes, including its Council and full membership.

Chapter 1 of the international arbitration Restatement is comprised of approximately 30 technical definitions of arbitration terms and Chapter 2 deals with arbitration agreements and, in particular, their enforcement and the allocation of authority between courts and arbitral tribunals when questions are raised regarding their enforceability. The reporters have also already completed and received approval on Chapter 4, which deals with annulment, recognition, and enforcement of arbitral awards. When completed, the Restatement will include a total of five chapters.

Over the years, several students have assisted Rogers in researching and finalizing the draft for publication, including Andrey Rank De Vasconcelos, Amina Dzano, Mingjie Gan, Radu Giosan, Eric Golden, Justin Krajeski, Leda Lipton, Adam Martin, Tolu Obamuroh, Stephanie Sweeney, Inan Uluc, Alexander Wiker, and Cynthia Yan.