On March 23, in Washington, DC, the Institute for Transnational Arbitration and the American Society of International Law will co-host a conference on “Fault Lines in International Commercial Arbitration.”
Building on the American Law Institute’s draft Restatement of the U.S. Law on International Commercial Arbitration, Gary Born, Jan Paulsson, J. William Rowley, QC, Linda Silberman, and Judge Diane P. Wood will discuss controversial themes that have emerged in the course of the drafting process. These include: (1) How National Is International Arbitration?; and (2) The Limits of Party Autonomy.
Although the themes for the conference may have an abstract tone, they encompass a host of issues relevant to anyone practicing in the field. Take the first theme, which one could easily reframe as “How International Is National Arbitration?”
Assuming that one drafts a national Restatement on an international topic, should the process aim to record the existing specificities of national practice, or to facilitate their subordination to international norms? To the extent that one aims to bridge gaps between national and international norms, should one focus on elimination of the most unusual local practices, which the draft Restatement does by rejecting (1) the application of forum non conveniens to enforcement proceedings, and (2) the use of “manifest disregard of the law” as a judicially created ground for vacating awards under § 10 of the Federal Arbitration Act (FAA)? See RESTATEMENT (THIRD) OF THE U.S. LAW OF INTERNATIONAL COMMERCIAL ARBITRATION § 5-21(a) (Council Draft No. 2, 2010) (“An action to enforce a Convention award is not subject to . . . dismissal on forum non conveniens grounds.”); RESTATEMENT (THIRD) OF THE U.S. LAW OF INTERNATIONAL COMMERCIAL ARBITRATION § 4-11E, ALTERNATIVE C (Preliminary Draft No. 4, 2010) (“A court may not vacate a U.S. Convention award for manifest disregard of the law.”).
Via Fault Lines in International Commercial Arbitration | Kluwer Arbitration Blog
