Brower — Volume 61, Issue 4

Legal Restatements represent magisterial compilations distilling law exhaustively through countless judicious eyes, projecting authority that invites both acceptance and scrutiny. Brower examines how Restatements on international topics create unique structural challenges absent in traditional state law treatments. The Restatement drafters face exceptional stakes when their work addresses federal statutes, treaties, and customary international law—a single Supreme Court judgment can vindicate or wholly defeat their work on particular topics. Brower identifies critical omissions creating "hollow spaces" left by unstated assumptions raising doubts about structural integrity. Building on concepts of hollow spaces and things left undone, the article explores the failure to adopt explicit standards managing the central challenge posed by international Restatements: charting a deliberate course among domestic, foreign, and global sources in elaborating international law. The Restatement (Second) of Foreign Relations successfully used a drafting standard emphasizing global perspectives and bringing protagonists to equilibrium. By contrast, the Restatement (Third) of Foreign Relations neglected such drafting standards, producing unfortunate consequences. Brower proposes a drafting standard for the Restatement on International Commercial Arbitration reflecting a domestic orientation. He demonstrates how explicit drafting standards could guide controversy resolution and illustrate proper application of Supreme Court jurisprudence, forum non conveniens doctrine, and federal statutes regarding treaty interpretation.

Topics: International Law · Legal Theory

Keywords: Restatement of Foreign Relations · international commercial arbitration · drafting standards · federal statutes · treaties · customary international law · domestic orientation