Abstract
I suspect that most issues of ‘contract interpretation’ call for the application of what Stefan Vogenauer has termed ‘universal hermeneutic truths’ – that is, the search for meaning by going no further than ‘common sense’ and how language is ‘commonly and naturally deployed’. The arbitrator does this not only by ‘worrying’ the text of the agreement, but more broadly by attempting to identify the underlying narrative – ‘the sense of the transaction’. These are universal ‘lawyerly skills’. And should an agreement run out of guidance for settling a dispute, a further step would ask us to move from ‘interpretation’, as commonly understood, to the process of ‘filling a gap’ in a responsible way. When we are in the realm of ‘default rules’, or ‘presumptions’, or ‘burden of proof’ – similar if not identical notions – recourse has to be made to the contract law of the legal system governing the contract …
Rau, Alan Scott, Arbitrators and the Interpretation of Contacts (October 31, 2018). American Review of International Arbitration, 2019 (forthcoming).
First posted 2018-11-26 06:50:49
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