Need for a Comparative Perspective (From Resolving Transnational Disputes Through International Arbitration, P 75-79, 1984, Thomas E Carbonneau, ed. - See NCJ-98767)

• NCJ Number: 98772
• Author(s): P E Herzog
• Date Published: 1984
• Length: 5 pages
• Sale Source: University Press of Virginia
• Language: English
• Country: United States of America

Annotation

Research into comparative law, including comparative conflict of laws, is required in framing all aspects of commercial arbitration, because terms having one meaning in the legal culture in which an arbitration clause is drafted may have another meaning in the legal culture where the clause is interpreted.

Abstract

The case of Gangel v. de Groot (New York Court of Appeals, 1977) highlights the importance of carefully examining the precise meaning of all terms used in a contract providing for arbitration. These terms will be interpreted not only by the draftsman but also by persons (parties, courts, arbitrators) subsequently making legal decisions based upon the arbitration clause. A comparative inquiry is necessary concerning (1) the numerous national rules limiting the power of certain persons, such as governmental units, to agree to arbitration; (2) arbitration procedure; (3) problems in connection with the recognition of arbitration judgment. In the United States, for instance, arbitrators often do not prepare an opinion in commercial arbitrations. Some foreign countries, on the other hand, consider an opinion an essential feature of proper arbitration procedure, so that an arbitral award lacking an opinion may not be enforceable. Eighteen footnotes are provided.