Gateway-Schmateway: An Exchange Between George Bermann and Alan Rau
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What role do national courts play in international arbitration? Is international arbitration an “autonomous dispute resolution process, governed primarily by non-national rules and accepted international commercial rules and practices” where the influence of national courts is merely secondary? Or, in light of the fact that “international arbitration always operates in the shadow of national courts,” is it not more accurate to say that national courts and internatonal arbitration act in partnership? On April 27, 2015, the Pepperdine Law Review convened a group of distinguished authorities from international practice and academia to discuss these and other related issues for a symposium on International Arbitration and the Courts. The issue begins with a transcript of a moderated exchange between Professor Bermann, the Reporter for the American Law Institute’s (ALI) ongoing Restatement (Third) of the U.S. Law of International Arbitration project, and Professor Rau, an ALI-appointed Advisor on the project. Professor Coe poses questions to both scholars that focus on selected issues that are characteristic of matters discussed during the ALI drafting and consultative process, especially so-called “gateway” matters like competence-competence. This exchange revealed several questions on which Professors Bermann and Rau diverged – namely, arbitrability of scope issues, the concept of delegation, and whether an express remedy limitation in a contract should be treated as a limit on a tribunal’s authority. For those interested in the iterative process that creates an ALI Restatement, this is a must read.