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This article explores the sources, nature, and implications of an arbitrator’s duty to decide according to the governing law in investor-state arbitrations. It advances a contractarian conception of arbitral authority in investor-state arbitration, whereby the agreement of the states parties to the investment treaty is the source of both the arbitrator’s power to make decisions and the primary constraint on that power: the duty to apply the law. It argues that the choice of law provisions in investment treaties have a constitutional character for arbitral tribunals, such that a failure to apply the chosen law constitutes an excess of the tribunal’s powers which, if manifest, justifies annulment or non-enforcement of the award. The article concludes by considering the implications of this contractarian theory of arbitral powers and duties for arbitrators, disputing parties, and states seeking to reassert control over the investor-state dispute settlement system.

Common law Canada displays a marked disjunction between ex ante and ex post price control strategies. The federal government and provinces are avid price regulators, imposing explicit price controls and transparency mandates applicable to many consumer contracts. However, their legislative and regulatory strategy has been a piecemeal one, with most regulations applying to individual industry sectors, in particular those where popular pressure to crack down on deceptive practices or high prices generates political momentum. By contrast, the courts have assigned themselves a strictly limited role in regulating price terms ex post. They continue to hew to traditional notions of freedom of contract, and to invalidate price terms in exceedingly narrow circumstances derived from historically-recognized categories of unfairness—piecemeal solutions of a different kind. Neither the courts nor the legislatures have developed a general theory or policy of contractual unfairness, in standard contracts or otherwise. The overall effect is that ex ante regulation of price terms is stringent where it exists but uneven in application, while ex post control of price terms by the courts is widely available in principle but rarely if ever occurs in practice.

This article considers the role of arbitrators in adjudicating the merits of international commercial disputes. It focuses, as a case study within this broader topic, on the interpretation of contracts. Interpreting contracts is a highly practical activity, but arbitrators’ approach to interpretation has important implications both for theory and for the success of arbitration as a means for the resolution of international commercial disputes. Are arbitrators more like judges, bound to apply the governing law according to strictly defined rules, or more like commercially minded problem-solvers? What approach best serves the needs of commercial parties? The article challenges a widespread attitude that arbitrators should interpret contracts according to their commercially reasonable meaning, regardless of the interpretative rules provided in the governing law. First, it documents this attitude in the published awards and in the ‘extra-judicial’ pronouncements of arbitrators. Second, it confronts the various arguments that might be made in favour of arbitrators departing from the governing law. Finally, it sets out a suggested approach for determining the appropriate interpretive method in any given case.

Even as contract law globalizes, it is splitting along industry lines, so that disputes arising in different industry sectors are decided according to industry-specific rules rather than generally-applicable contract law principles—a phenomenon this chapter describes as “sectoral fragmentation”. Sectoral fragmentation is explained as aspect of functional differentiation in globalized commercial society: as state governance declines in importance compared with contractual and other forms of private governance, the borderless and sector-specific structure of commercial communities is recapitulated in formal contract law. The chapter reviews the causes, mechanisms, and consequences of a sectorally fragmented transnational contract law.

The uniform interpretation of uniform law instruments is justifiably a preoccupation of the international uniform law community. However, despite the issue’s importance to the success of legal harmonisation efforts, remarkably little is known about how national courts actually interpret international uniform laws. The literature remains almost entirely anecdotal; no systematic study has been made of the courts of even one state or region to determine whether, as a group, they do or do not interpret international uniform law instruments with an eye to the international legal context. This article describes an empirical study of Canadian courts’ interpretations of five representative international uniform law instruments implemented in Canada. In particular, it describes the extent to which which Canadian courts engage with foreign sources in order to reach internationally uniform interpretations. According to the data collected, Canadian courts do not appear to be hostile to foreign sources when interpreting statutes based on international uniform laws, but neither do they take the initiative to consider foreign sources or otherwise seek internationally uniform interpretations. The traditional determinants of judicial interpretations of domestic statutes (the text and subject-matter of the statue and the character of high-level domestic precedents) continue to predominate. In other words, efforts to promote uniform interpretation of international uniform laws appear have had little effect, at least below the level of the Supreme Court of Canada. The article concludes by discussing the implications of this study for the promotion of uniform interpretation in national courts.

Herbert H.P. Ma has written eloquently and extensively about the interrelationships between traditional Chinese cultural values and modern Chinese legal rules and practices. In the contemporary world, one area where the mutual influence of culture and law is most clearly on display is international commercial arbitration. This chapter explores the philosophical, cultural, socioeconomic, and structural roots of international arbitration as it is conducted in culturally Chinese jurisdictions and by culturally Chinese parties and arbitrators. Is traditional Chinese culture persistent? Or is its impact swamped by differences in legal systems and the economic imperatives of modern commercial dispute resolution? The chapter concludes that while standard practices in international arbitration do seem to be determined more by structural and legal factors than by cultural ones, Chinese dispute resolution culture will nevertheless be influential in shaping the evolution of global international arbitration standards.

There now appears to be general agreement that greater publication of awards would benefit the international commercial arbitration system, yet most awards remain unpublished. This article explains the current state of affairs by reference to the conflict between party and systemic interests. Since international arbitration is a private, consent-based system, party interests in keeping awards confidential are likely to trump systemic interests in publishing them—even if those systemic interests align with the long-term interests of commercial parties generally. The conflict of interests not only explains why confidentiality of international arbitral awards remains the rule, it also points the way to a method of publishing awards that would serve systemic interests in publication while protecting party interests in confidentiality. This article proposes that arbitral institutions amend their rules to provide that the parties agree to limited publication of awards. Only those parts of awards that are of general interest will be published, while tribunals will be empowered to redact proprietary business information and any facts that might lead to identification of the parties. Parties will be able to object to the publishable text proposed by the tribunal, but not to the fact of publication.

Despite much attention to the controversial lex mercatoria, international commercial arbitration remains underanalysed as a venue for contract law unification. This article considers a specific case of substantive contract law in arbitration, the remedy of suspension of performance: When will one party's non-performance enable the other party to withhold performance without terminating the contract? In domestic laws, suspension of performance is governed by clearly-defined doctrines; however, it remains unclear whether it constitutes a general principle of international law. This article places suspension in a comparative context, then analyses the published arbitral awards for indications of arbitrators' preferences.

The Canadian criminal law on foreign corruption recently experienced great upheaval, as Canada worked to bring its legislation up to international standards following years of inadequate substantive law and lackadaisical prosecutions. Canadian private law, by contrast, has remained highly stable on paper, but longstanding doctrines have been effectively applied to modern, internationalized forms of corruption.

Consider this rather quotidian situation: a party to an enforceable contract (the injured party) faces a breach by the other party, and the injured party has not yet performed all of its obligations. At common law, the injured party has at most two choices (leaving aside restitutionary and statutory remedies): it may perform its remaining obligations and then claim damages or, in some circumstances, terminate the contract and have both parties’ remaining obligations discharged.There is no middle ground. The common law does not permit injured parties to withhold performance without discharging both parties’ unperformed obligations. In other words, the injured party cannot exert pressure on the breaching party to perform its obligations by temporarily withholding its own performance. This leaves the injured party in a tenuous position: if it performs its remaining obligations, it must then sue for damages, a lengthy, expensive, and uncertain venture (and may also immediately to have purchase substitute goods or services). If, on the other hand, it withholds performance, it risks being held to have repudiated the contract.Although the doctrines differ, all civil law jurisdictions recognize some version of the exceptio non adimpleti contractus, which grants injured parties the right to suspend performance without terminating the contract. Some transnational contract law instruments (such as the UNIDROIT Principles of International Commercial Contracts) also permit injured parties to temporarily suspend performance.This paper discusses the historical reasons why the common law excludes a right to suspend of performance and argues that it ought to recognize such a right. A right to suspend of performance without terminating the contract accords with the intuitive moral conceptions of contracting parties. (“Until you keep your promise, I won’t keep mine.”) In terms of policy, it would promote performance of contractual obligations, would reduce the number of expensive substitute transactions, and would be in line with the common law preference for efficient self-help remedies. The paper canvasses suspension of performance doctrines in different civil law jurisdictions to show various ways in which potential abuses of a right to suspend performance could be addressed.

National courts have restricted party autonomy in choice of law in a variety of ways. In international arbitration, on the other hand, the march of party autonomy has been unhindered. National courts have abetted this process in the international arbitration context, even as they have maintained restrictions on party autonomy in choice of law within their own legal systems. This phenomenon, combined with the gradual loosening of restrictions on party autonomy in national legal systems, has led some to claim that international arbitration is leading the nations of the world into a global choice of law regime in which party autonomy reigns. Such triumphalists look forward to the day when party autonomy is as unrestricted in national courts as it is in arbitration.This article argues that such a day is unlikely to arrive. The different pressures and interests that shape national court litigation on the one hand, and international arbitration on the other, are likely to generate different levels of support for party autonomy in choice of law. As a result, regardless of whether more party autonomy in choice of law is preferable in all contexts, or whether it ought to have a wider scope in arbitration than in litigation, arbitrators are likely to maintain greater deference to party autonomy than will national legislatures or courts.Note: This paper represents an early version of some concepts and arguments that I develop better and in more depth in my book, The Culture of International Arbitration and the Evolution of Contract Law (Oxford University Press, 2013).

The United Nations Convention on Contracts for the International Sale of Goods (CISG) is intended to serve as a uniform law for international sales. Like all conventions and uniform laws, it suffers from a practical weakness: there is little benefit in enacting uniform rules if they are applied inconsistently. More than seventy countries have now ratified the CISG and their courts have reached significantly diverging interpretations on several CISG provisions. Moreover, there is no centralized authoritative body to promote uniform interpretation. Since 2001, a group of scholars called the International Sales Convention Advisory Council (CISG-AC) has issued opinions on unsettled matters of CISG jurisprudence. A private initiative with no official status, the CISG-AC has nevertheless begun to garner attention from both academics and the courts, including one citation by a U.S. Federal District Court. This article considers the formation, composition, procedures, and mission of the CISG-AC, assesses the impact that it has had thus far on the uniform interpretation of the CISG, and considers its proper role in the CISG interpretive community. While the CISG-AC has not as yet had a significant impact on uniform interpretation of the CISG, it has generated increasing legitimacy as an authoritative commentator on the CISG.

The CISG is intended to serve as a uniform law for international sales. Like all conventions and uniform laws, it suffers from a practical weakness: there is little benefit in enacting uniform rules if they are applied inconsistently. A particular danger is posed by the ‘homeward trend’ – the tendency for courts to be influenced by domestic laws and modes of legal reasoning. Since 2001, a group of scholars called the International Sales Convention Advisory Council (CISG-AC) has issued opinions on unsettled matters of CISG jurisprudence. A private initiative with no official status, the CISG-AC has nevertheless begun to garner attention from both academics and the courts. This article describes the CISG-AC – its formation, composition, and opinions – assesses the impact that it has had thus far on the uniform interpretation of the CISG, and considers its proper role in combating the homeward trend.

When courtroom interpreters translate a witness’s testimony, errors are not just possible, they are inherent to the process. Moreover, the occurrence of such errors is not merely a technical problem; errors can infringe on the rights of defendants or even lead to verdicts based on faulty findings of fact. International criminal proceedings, which are necessarily multilinguistic, are both particularly susceptible to interpretation errors and sensitive to questions of procedural fairness.This Article surveys the history and mechanics of courtroom interpretation, explains the inherent indeterminacy of translated language, and describes the other sources of inaccuracy in interpreted testimony. It then assesses the impact that errors in interpretation may have on fact finding by international criminal tribunals and on the rights of international criminal defendants. The Article concludes by suggesting some low-cost and easy-to-institute measures that will reduce the likelihood that a judgment will turn on an inaccurate interpretation. Improving the quality of translation will buttress the rightness of the international criminal tribunals’ judgments and the fairness of their procedures.