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Principle

No. IV.5.4 - Interpretation against the party that supplied the term

Where, after the interpretation of a contract term that has been supplied by one party, doubts remain as to the meaning of that term, an interpretation against that party is to be preferred ("contra proferentem").

Commentary
This rule may be applied if a contractual term is contained in standard terms drafted by one party. However, it may also be used in situations in which one party has drafted a contract which does not have the quality of standard terms. In such scenarios, the party which drafted the ambiguous term may not later rely on a meaning of that term which is to the disadvantage of the other side, unless this ambiguity was discussed between the parties when the contract was concluded.

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References
Arbitral Awards
Bechtel Enterprises International (Bermuda) Ltd; BEn Dabhol Holdings, Ltd; and Capital India Power Mauritius I v. Overseas Private Inestment Corporation, AAA Case No. 50 T195 00509 02, Mealey�s International Arbitration Report, Vol. 18, #10, 10/03, A-1
China 7 January 2000 CIETAC Arbitration proceeding (Cysteine case) [Cite as: http:/cisgw3.law.pace.edu/cases/00107cl.html]
ICC Award No. 2795, YCA 1979, at 210 et seq.
ICC Award No. 3460, Clunet 1981, at 939 et seq.
ICC Award No. 3779, YCA 1984, at 124 et seq.
ICC Award No. 7110, 10 ICC Bull. No. 2, 1999, at 1029 et seq.
Iran - US Claims Tribunal, Award in Case No. 34 (206-34-1) of 3 December 1985, YCA 1987, 257 et seq.
Iran-US Claims Tribunal, Award in Case No. 34, YCA 1987, 257
Iran-US Claims Tribunal, First Travel Corp. v. Iran, 9 IRAN-U.S. C.T.R., at 360 et seq.
Society of Maritime Arbitrators, Inc., New York, Award No. 2972, Nordic American Shipping A/S v. Bayoil Inc., YCA 1995, at 126 et seq.
Court Decisions
Aamco Transmissions Inc. v Kunz, 97 Sask. R. 5
Antonio Mastrobuono and Diana G. Mastrobouno, Petitioners, v. Sherason Lehman Hutton, Inc. et al., 115 S.Ct. 1212 (1995)
Bobux Marketing Ltd. v. Raynor Marketing Ltd. [2002] 1 NZLR 506 (Court of Appeal).
Falcone Brothers Partnership v Bear Stearns & Co., Inc., Steven Kirsch, and Steven Dantus, 699 F.Supp. 32
Paul Revere Variable Annuity Insurance Company et al v. Maureen A. Kirschhofer et al., 226 F.3d 15 (1st Cir. 2000)
Shaw Group Inc. v Triplefine International Corporation, 322 F.3d 115.
Svenska Petroleum Exploration AB (Schweden) vs. Government of the Republic of Lithuania & AB Geonafta (Lithuania), in: Yearbook Comm. Arb'n XXXI (2006), at 906 et seq.
Doctrine
Black, Henry Campell, Black's Law Dictionary, 6th ed., St. Paul 1990
Bonell, Michael Joachim, The UNIDROIT Initiative for the Progressive Codification of International Trade Law, 27 ICLQ 1978, at 413 et seq.
Canaris/ Grigoleit, Interpretation of Contracts, in: Hartkamp/ Hesselink/ Hondius/ Joustra/ du Perron/ Veldman, Towards a European Civil Code, Nijmegen 2004, at 445 et seq.
Cheng, Bin, General Principles Of Law as Applied by International Courts and Tribunals, reprinted, Cambridge 1987
Crook, John R., Applicable Law In International Commercial Arbitration: The Iran-US-Claims Tribunal Experience, 83 AJIL 1989, at 278 et seq.
Domingo, Ortega, Rodriguez-Antolin, Zambrana, Principios de Derecho Global, Navarra, 2006
Fouchard Gaillard Goldman on International Commercial Arbitration (edited by Emmanuel Gaillard and John Savage) The Hague 1999
Hartkamp, Arthur, The UNIDROIT Principles for International Commercial Contracts and the New Dutch Civil Code, in: CJHB Brunner-Bundel, Deventer 1994, at 127 et seq.
Horn, Norbert, Das Recht der internationalen Anleihen, Frankfurt a.M. 1972
Kersley, R.H., M.A., LL.M./ Broom, Herbert, LL.D., A Selection of Legal Maxims, 10th ed. London, 1939
Larenz/Wolf, Allgemeiner Teil des Bürgerlichen Rechts, 9. Auflage, 2004, § 28 Rn. 56.
Lüderitz, Alexander, Auslegung von Rechtsgeschäften, Karlsruhe 1966
Lewison, Kim, The Interpretation of Contracts, 2nd. Ed., London 1997
Marrella, Fabrizio, La nuova lex mercatoria, Principi Unidroit ed usi di contratti des comercio internazionale, CEDAM, Tratto di dritto commerciale e di dritto publico dell‘economia, Volume 30, Padova 2003
Maskow, Dietrich, Beispiel für allgemeine vertragsrechtliche Regeln, in: Ak.St.Rwiss.DDR (ed.), Grundzüge einer wissenschaftlichen Konzeption des allgemeinen Teils der rechtlichen Regelung internationaler Wirtschaftsbeziehungen zwischen den Organisationen der Mitgliedsländer des RGW, Potsdam-Babelsberg 1986, at 38 et seq.
Meyer, Olaf, Contra Proferentem? - Klares und weniger Klares zur Unklarheitsregel, ZHR 174 (2010), 108 et seq.
Noy, William, A Treatise of the Principal Grounds and Maxims with an Analysis of the Laws of England, 1821
Ripert, Georges, Les Règles du Droit Civil Applicables aux Rapports Internationaux (Contribution à l'Etude des Principes Généraux du Droit Visés au Statut de la Cour Permanente de Justice Internationale), 44 Rec.Cours 1933-II, at 569 et seq.
Schmitthoff, Clive, International Trade Usages, Institute of International Business Law And Practice Newsletter, Special Issue, ICC Publ.440,4, Paris 1987
Triebel, Volker, Pitfalls of Englisch as a Contract Language, in: Frances Olsen et al (eds), Translation Issues in Language and Law (2009), at 147 et seq.
Wühler, Norbert, Application of General Principles of Law, in van den Berg (ed.), Planning efficient Arbitration Proceedings - The Law Applicable in International Arbitration, p. 553 et seq.
Wolf, in: Soergel BGB - Bürgerliches Gesetzbuch Allgemeiner Teil 2, § 157 Rn. 59 Verantwortung des Aufstellers
Miscellaneous
CISG Advisory Council Opinion No. 13: Inclusion of Standard Terms under the CISG
Model Laws
American Restatement 2nd of the Law of Contracts
National Legislation
Bürgerliches Gesetzbuch - German Civil Code
Civil Code Québec
Contract Law of the People's Republic of China
Czechoslovak International Trade Code
Ethiopian Civil Code
French Code Civil
German AGB-G
Italian Codice Civile
United Arab Emirates Civil Code 1987
Principles / Restatements
Principles of European Contract Law - PECL
Principles of the Existing EC Contract Law (Acquis Principles)
UNIDROIT Principles of International Commercial Contracts
Contract Clauses
1. Clause Excluding Contra Proferentem Rule
Sales & Purchase Contract
Anti-Contra Proferentem
This agreement has been fully reviewed and negotiated by the parties hereto and their respective counsel. Accordingly, in interpreting this agreement, no weight shall be placed upon which party hereto or its counsel drafted the provision being interpreted - (International Contracting: Law and Practice - Larry A. DiMatteo - §9.03 - S. 330).
Construction
(...) Any ambiguity shall not be interpreted against the drafting Party.
2009
Interpretation
The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
2010
Treatment of Ambiguities
Each Party acknowledges that it has participated in the drafting of this Agreement and the other Transaction Documents to which it is a party, and that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be applied in the construction or interpretation of this Agreement or the other Transaction Documents.
2012
Construction
The parties agree that each of them and their respective counsel has reviewed and had an opportunity to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of the Transaction Documents or any amendments hereto.
2014
Services Contract
Construction of Agreement
(...) any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this Agreement.
Loan Contract
Miscellaneous
(...) The language in this Agreement shall be construed as to its fair meaning and not strictly for or against any party (...)
Construction
Each of this Bridge Note and the other Transaction Documents is the result of negotiations among, and has been reviewed by, Company, Investor and their respective counsel. Accordingly, this Bridge Note and the other Transaction Documents shall be deemed to be the product of Company and Investor, and no ambiguity shall be construed in favor of or against Company or Investor.
2002
Construction of Agreement
The parties mutually acknowledge that they and their attorneys have participated in the preparation and negotiation of this Agreement. In cases of uncertainty this Agreement shall be construed without regard to which of the parties caused the uncertainty to exist.
2011
Construction of Agreement
The parties mutually acknowledge that they and their attorneys have participated in the preparation and negotiation of this Agreement. In cases of uncertainty this Agreement shall be construed without regard to which of the parties caused the uncertainty to exist.
2012
Bankruptcy Agreement
Joint Drafting and Negotiation
This Agreement has been jointly negotiated and drafted. The language of this Agreement shall be construed as a whole according to its fair meaning and not strictly for or against either of the parties.
2005
Merger Agreement
Interpretation
The Parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted.
2013
Joint Venture
Certain Interpretative Matters
No provision of this Agreement will be interpreted in favor of, or against, any of the Parties by reason of the extent to which any such party or its counsel participated in the drafting thereof or by reason of the extent to which any such provision is inconsistent with any prior draft of this Agreement or such provision.
2005
Drafting Presumption
This Memorandum of Agreement will be construed fairly as to each party regardless of which party drafted it.
2006
Certain Interpretative Matters
No provision of this Agreement will be interpreted in favor of, or against, any of the Parties by reason of the extent to which any such Party or its counsel participated in the drafting thereof or by reason of the extent to which any such provision is inconsistent with any prior draft of this Agreement or such provision.
2007
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