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Kartin, Joshua, The Arbitral Role in Contractual Interpretation, J. Int'l Disp. Settlement 2015, at 4 et seq.

Kartin, Joshua, The Arbitral Role in Contractual Interpretation, J. Int'l Disp. Settlement 2015, at 4 et seq.
Table of Contents

The Arbitral Role in Contractual Interpretation




B. International Arbitral Attitudes Towards Contractual Interpretation


The same pattern obtains with respect to arbitrators' attitudes toward contractual interpretation: they tend to play down the importance of the law and play up the importance of the commercial context. One interviewee, a leading London-based arbitrator, when asked about his approach to interpreting contracts, replied dismissively that there are only two rules of interpretation: 'Common sense is one. Commercial sense is the other.'66 A French academic and practitioner dismissed rules of interpretation as 'only a guide âne,67 not really rules of law, but advice—be reasonable, sensible'.68 A third interviewee, when asked how she approaches the task of interpreting contracts, observed that, 'Of course, if you were vigorous, you would look at contract interpretation rules under the applicable national law and you would notice significant differences.'69 
Similar declarations can be seen in some of the published awards. For example, in ICC Case No 12745, the tribunal observed:

[I]t is fit to recall that the French civil code...lays down some rules for the construction of contracts.... Such interpretation rules are obviously not mandatory but they are common sense guidelines to which judges and arbitrators will normally give considerable respect. Besides, they are meant to extract from the contract the true and actual common intent of the parties: they become unnecessary where such intent clearly results from any other circumstances as interpretation is then not useful.70


Arbitrators' characterizations of their preferred interpretive approach are not mere rhetoric. The analysis of published awards above shows that arbitrators tend to follow a relatively consistent interpretive approach, regardless of the governing law. This approach is characterized by invocation of the subjective intention of the parties, an emphasis on reading the contractual text in its commercial context and an inclusive approach to extrinsic evidence of the parties' intentions.
In a recent article, Lévy and Robert-Tissot reach largely the same conclusion.71 After acknowledging that arbitrators are bound by the interpretive rules in the governing law, they conclude that, 'In reality, by applying his common sense, experience, and personal convictions, the arbitrator determines the true intention of the parties.'72 This approach is often justified by citations to general principles of international commercial law, whether codified or uncodified.73 Their article is mostly descriptive rather than normative, but Lévy and Robert-Tissot do eventually endorse the interpretive method described: 'Done properly, reaching solutions by interpreting the parties' intentions rather than by sophisticated juridical reasoning deserves praise....'74

66Interview with the author, 29 May 2012.
67A very elementary guide; literally, a 'guide for fools' or 'guide for asses'
68Interview with the author, 7 June 2012.
69ibid, 11 July 2012 (emphasis added).
70ICC Case No 12745, (2010) XXV YB Comm Arb 40 [26]–[27].
71In that article, they describe my previously-published findings as unsurprising. Lévy and Robert-Tissot (n 2) 888 ('Il n’y a pas lieu de s’en étonner.').
72ibid 891 (author’s translation) ('En réalité, en appliquant sa logique, son expérience et son intime conviction, l'arbitre recherche la volonté réelle des parties. Il s'agit là d'une règle émergente en arbitrage international.'). One interviewee, with an extensive record in both scholarship and practice, concurred: 'If you look at what arbitrators do, they tend not to resort, or not always to resort, to the contract interpretation rules, but simply to try and focus on the real intent of the parties.' Interview with the author, 11 July 2012.
73ibid 886.
74ibid 902 (author's translation) ('...bien conduite, la recherche des solutions par l'interprétation des volontés plutôt que par des raisonnements juridiques sophistiqués mérite approbation...').

Referring Principles
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