Originally from Reflections on International Arbitration - Essays in Honour of Professor George Bermann

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To the best of my knowledge, George Bermann has never been involved in a parking lot, or any other, brawl. Indeed, he is the most peaceable of gentlemen. But as Chief Reporter for the American Law Institute (“ALI”)’s already justly famous Restatement of the U.S. Law of International Commercial and Investor-State Arbitration (the “Restatement”), he had a hand in resolving issues concerning immunity of arbitrators that involved such a tussle.

When Professor Bermann undertook the role of principal Reporter for the Restatement in 2007, he predicted (at least privately) that the project should take about five years. Instead, this Restatement—described by ALI Director Richard L. Revesz in his Foreword as “a very difficult project”—consumed more than a dozen years, culminating in approval of a Proposed Final Draft in 2019 (with the official text to be published in 2021) (the “Final Draft”).  This was largely because the subject proved more complicated than its planners had anticipated.

Unlike many ALI Restatements, this Restatement addresses a body of law perforated by a considerable number of gaps to be filled.  U.S. courts and international arbitration proceedings intersect only intermittently, usually at the beginning or at or after the end of an arbitration. The federal and state case law is extensive but tends to be relatively spotty on some big-picture conceptual issues, often without clear or even clearly competing lines of authority that a Restatement might adopt.