The Predictability Paradox: Arbitrators and Applicable Law
Forthcoming in 11 ICC Dossiers (ICC Institute of World Business Law 2014), Proceedings of Annual Meeting on International Arbitration and Substantive Applicable Law
29 Pages Posted: 15 Oct 2014
Date Written: October 7, 2014
In resolution of international contract disputes, arbitrators may sometimes show greater fidelity than courts to the parties’ intentions and established rule of a chosen law, foregoing any policy-making function similar to that sometimes asserted by common law judges. In adjusting international contracts, arbitrators face special tensions in their search for counterpoise between rival notions of predictability, often expressed in imprecise terms like “commercial reality” or “strict letter of the law” which like the humble chameleon take different colors depending on the backdrop.
Keywords: Exculpatory Clauses and Arbitral Jurisdiction, good faith, abuse of rights, UNIDROIT Principles, contract terms at odds with applicable law
JEL Classification: K33, K39, K49
Suggested Citation: Suggested Citation