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The Culture of International Arbitration and The Evolution of Contract Law$
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Joshua D H Karton

Print publication date: 2013

Print ISBN-13: 9780199658008

Published to Oxford Scholarship Online: May 2013

DOI: 10.1093/acprof:oso/9780199658008.001.0001

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Case Study 1: Suspension of Performance

Case Study 1: Suspension of Performance

(p.161) 6Case Study 1: Suspension of Performance
The Culture of International Arbitration and The Evolution of Contract Law

Joshua Karton

Oxford University Press

This chapter presents a case study of international arbitral decision-making in action on a discrete area of contract law. It examines the decisions of international commercial arbitrators in cases where a party has suspended performance. The chapter begins with an overview of the remedy of suspension of performance, including an assessment of the universality of right to suspend performance. Next, it places the remedy in context by comparing the law on suspension of performance in five states that supply a large number of international arbitrators and host a large number of international arbitrations: three civil law jurisdictions (Germany, Switzerland, and France) and two common law jurisdictions (England and the United States). It also considers suspension under the major international contract law instruments. Finally, it assesses the published arbitral awards that consider suspended performance. The available data suggest that, when it comes to deciding cases of suspension of performance, arbitrators tend to make decisions in a different way than the courts of any country, and to reach results that are more consistent with each other than with the provisions of any national law.

Keywords:   international arbitration, international commercial arbitration, commercial law, contract law, suspension of performance, exceptio non adimpleti contractus, termination of contracts, conditions and warranties, transnational law, lex mercatoria, arbitral decision-making

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