NYU School of Law’s Intesa Sanpaolo Center for Transnational Litigation, Arbitration, and Commercial Law is glad to announce that Franco Ferrari, its Director and the Clarence D. Ashley Professor of Law at NYU School of Law, has just published a paper in the Italian peer-reviewed journal Rivista dell’Arbitrato. In the paper, titled “Transnationalism or Particularism in the Interpretation of Commercial Contracts in International Arbitration?”, Professor Ferrari critically examines the transnational representation of international commercial arbitration and its impact on contract interpretation. He challenges the view that arbitration operates autonomously from national legal systems, arguing instead that it remains firmly anchored in national legal systems.
The paper takes issue with a growing trend—identified in recent scholarship whereby arbitrators interpret contracts based not on the interpretive rules of the applicable law, but on their own sense of the parties’ intent or what they see as commercially reasonable. These choices are often justified in the name of arbitration’s alleged transnational character.
Professor Ferrari argues that this approach risks undermining legal certainty and legitimacy. Instead, the interpretive canons of the law—or rules of law—applicable to the contract should take precedence over subjective perceptions or generalized notions of commercial reasonableness.
