In
order to perform his mandate, the arbitrator must inevitably interpret both the
contract and the governing law of the dispute. Even if both pertain to the same
subject-matter, does the interpretation in an arbitration differ from judicial
interpretation? In the present article, this issue is studied primarily in the
context of international commercial arbitration, and then in investment and
sports arbitrations.
In international commercial arbitration, the
arbitrator focuses on the real intent of the parties (subjective approach) for
both the construction of the contract and the interpretation of the governing law.
She or he looks preferably for answers in the contract itself rather than in
the governing law. In case of loopholes in the former, the arbitrator will make
a « factual » (rather than legal) analysis of the latter by interpreting the
governing law according to the intent of the parties. Hence, the arbitrator’s
ultimate decision is dependent on the particular facts of a specific case and
she or he has more flexibility with respect to former precedents than a judge:
the arbitrator will therefore seek to give effect to predictability in the
performance of the contract rather than legal certainty.