Legal Interpretation and Adjudicatory Activism in International Commercial Arbitration
Forthcoming as a chapter in Jemielniak, J and Kjær, AL (eds.) "Legal Interpretation in the Practice of International Courts and Tribunals". Oxford University Press 2017
iCourts Working Paper Series No. 61
21 Pages Posted: 13 May 2016
Date Written: May 10, 2016
The paper discusses the issue of creative aspects of legal decision-making in the specific setting of international commercial arbitration. It focuses on cases, in which legal interpretation leads to an expression, formulation and consolidation of formerly unspecified or ambiguous rules. In this vein, the paper explores relevant theoretical approaches, formulated predominantly in the context of domestic litigation in the civil law and common law traditions. Applicability of these conceptualizations to arbitration is further examined, and differences between the conditions of judicial and arbitral adjudication are analyzed. A study of three interpretative considerations, characteristic to arbitration: lex mercatoria, amiable composition and public order, as well as relevant case law analysis, is further offered. The paper seeks to expose the role of these arguments in creative legal interpretation in arbitration, where mitigation or avoidance of overly locally oriented effects of application of national laws, as well as expansion of adjudicatory autonomy are frequently aimed at.
Keywords: arbitration, legal interpretation, commercial dispute resolution, judicial activism
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