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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 2: The Interpretation of Contracts

Case Study 2: The Interpretation of Contracts

(p.195) 7Case Study 2: The Interpretation of Contracts
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 when they are called upon to interpret a contract. The chapter begins by putting the issue of contractual interpretation into comparative context, first considering the opposing perspectives that underlie the different interpretive doctrines, then comparing the rules in some of the most commercially important common law and civil law jurisdictions and the major international contract law instruments. Next, it considers whether any general principles of evidence or private law apply to contractual interpretation in international arbitration. Finally, it assesses the published arbitral awards where the tribunal engaged in the interpretation of a contract. 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, contractual interpretation, subjective interpretation, objective interpretation, textualism, parol evidence, extrinsic evidence, transnational law, international private law, lex mercatoria, arbitral decision-making

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