Bermann — Volume 62, Issue 1

This brief response essay by the Reporters for the Restatement (Third) of the U.S. Law of International Commercial Arbitration addresses criticisms raised by Professor Chip Brower regarding Tentative Draft No. 2. The authors defend the Restatement's approach against Brower's three primary critiques: (1) failure to identify a clear navigational path integrating domestic, foreign, and global perspectives; (2) deviation from proper treaty interpretation norms; and (3) disrespect for statutory construction principles. The Reporters argue that their Restatement appropriately avoids preordained hierarchical integration of perspectives, recognizing that different issues engage different sources at varying degrees. They maintain that the Restatement benefits from avoiding categorical pre-commitment to any single analytical pathway and that an iterative drafting process allows positions to evolve productively. The Reporters acknowledge that constancy is not an end in itself within the deliberately dialogic process designed to account for diverse viewpoints. They emphasize that individual Restatement provisions are refined through repeated iterations and consultative groups drawing from judges, academics, and practitioners. The Reporters contend that their experience vindicates the Restatement's flexibility in integrating multiple perspectives rather than adhering to a predetermined conceptual framework.

Topics: International Law · Contracts

Keywords: international commercial arbitration · Restatement (Third) · treaty interpretation · statutory construction · arbitration law · legal methodology