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January 4, 2010

American Law Institute appoints Professor Alan Rau an adviser for the Restatement of the U.S. Law of International Commercial Arbitration

Photo of Alan Rau
Professor Alan S. Rau

Alan S. Rau, one of the nation’s leading experts on arbitration and Burg Family Professor of Law at the University of Texas School of Law, has been appointed an adviser on an important new project of the American Law Institute (ALI) to draft a Restatement of the U.S. Law of International Commercial Arbitration. The initial meeting of the project’s advisers will be held at ALI headquarters in Philadelphia on January 29 and 30, 2010.

The project underscores the need to bring clarity and consistency to a complex field of law that is subject to the intersection of many different bodies of law—common law, legislation, and international conventions—and has become recognized worldwide as a resource in the resolution of international commercial disputes.

The ALI is the leading independent organization in the United States producing scholarly work to clarify, modernize, and improve the law. The Institute—made up of four thousand distinguished lawyers, judges, and law professors—drafts, discusses, revises, and publishes Restatements of the Law, model statutes, and principles of law that are enormously influential in the courts and legislatures, as well as in legal scholarship and education. In recent years, more of the ALI’s work has become international in scope.

Rau is an active arbitrator and the author of a widely used alternative dispute resolution casebook and numerous scholarly articles. He joins a select group of advisers, all of whom are leading authorities in international arbitration, including Doak Bishop, ’76, a litigation partner with King & Spalding in Houston and a member of the firm’s Latin American Practice Group.

In his role as an adviser, Rau will help clarify the legal principles that guide international commercial arbitration by reviewing and discussing drafts of the Restatement prepared by the four academics leading this project: Reporter George A. Bermann of Columbia Law School; Associate Reporters Jack J. Coe Jr. of Pepperdine University School of Law and Christopher R. Drahozal of the University of Kansas School of Law; and Catherine A. Rogers of Penn State University, Dickinson School of Law.

Rau said this project will try to set out a coherent view of the American law of international commercial arbitration. Many courts don’t understand the law in this field because it is relatively new and complex, he said. A better understanding of the legal issues of international commercial arbitration under United States law is expected to benefit the international commercial arbitration system generally because of the growing prominence of United States parties, institutions, and arbitration law.

“It’s a very complex field, and arbitration, with the globalization and the expansion of international trade, has become the dominant dispute resolution mechanism,” Rau said. Arbitration is perhaps most common in commercial transactions between private firms, where a clause in the contract has provided for resort to arbitration to settle future disputes. Increasingly, arbitration is also being used to resolve claims by private investors against their host countries, with the right to arbitration conferred by a bilateral investment treaty.

The Restatement project is expected to cover, among other topics: arbitration agreements, conduct of and the judicial role in international arbitral proceedings in the United States, awards, and recourse from and enforcement of international arbitral awards rendered in the United States. The project will also address the judicial role in international arbitral proceedings abroad, enforcement of international arbitral awards rendered abroad, and the preclusive effect of international arbitral awards.

Rau is also a faculty advisor of the Law School’s Center for Global Energy, International Arbitration, and Environmental Law. Launched in the fall of 2009, the Center promotes and sponsors education, collaborative research, critical discussion, policy analyses, and hands-on clinical experience to address the most pressing energy and natural-resource issues of our time. The Law School created the Center to give students the opportunity to study in depth the law, policy, and commercial realities related to the production of energy, protection of natural resources, and the use of international arbitration to resolve commercial disputes.

One of the Center’s major ongoing projects—which Rau has helped to plan—is the hosting of an annual International Arbitration Symposium that draws the leading experts in the field together to give presentations. Three symposiums, alternating between The Hague and Houston, have already been held. The next one, “Arbitration and National Courts: Conflict and Cooperation,” will take place May 13–14, 2010, in Houston at the Four Seasons Hotel.

This symposium is the fourth organized by the Law School but will be the largest in terms of the number of experts attending and making presentations. The proceedings from The Hague 2007 conference were published by Oxford University Press, and the proceedings from the next conference in Houston will be published by the American Review of International Arbitration.

Doak, who also serves on the advisory board of the Center, will participate in the upcoming symposium, as will others who are advisers to the Restatement project. They include Andrea K. Bjorklund of the University of California, Davis, School of Law; David Caron of the University of California, Berkeley, School of Law; Toni D. Hennike of the ExxonMobil Corporation in Houston; and W. Michael Reisman of the Yale Law School.

Burg Family Professor of Law Alan Rau teaches and writes in the areas of contracts and alternative dispute resolution, particularly arbitration. He is coauthor of Processes of Dispute Resolution: The Role of Lawyers (3rd ed., 2002) and the author of several articles, including “All You Need to Know About Separability in Seventeen Simple Propositions,” American Review of International Arbitration (2003); “Arbitral Jurisdiction and the Dimensions of Party Consent,” Arbitration International (2008); “Fear of Freedom,” American Review of International Arbitration (2008); “The Arbitrator and Mandatory Rules,” American Review of International Arbitration (2008); and “Evidence and Discovery in American Arbitration: The Problem of Third Parties,” American Review of International Arbitration (2009).

Rau also serves on the Commercial and International Panels of the American Arbitration Association, and has been a visiting faculty member at the University of Toronto; China University of Political Science and Law in Beijing; Willamette University College of Law; the University of Geneva; and the Universities of Paris-I and Paris-II.

Kirston Fortune, Assistant Dean for Communications, (512) 471.7330 or