Originally from The Law and Practice of International Arbitration: Essays in Honor of John Fellas – Preview Page

Contributing to a book dedicated to John Fellas is both a pleasure and a privilege. Rarely, has an arbitrator with a common law background displayed such an extensive knowledge and understanding of civil law systems. The broad and diverse nature of John’s professional practice undoubtably played a role in his expertise in civil law systems. 

This explains the title of this contribution. There are still, to this day, major areas of misunderstanding in relation to the interpretation of contracts under common law systems and civil law systems, respectively. Put simply, the prevailing view is that common law systems tend to enforce contracts in accordance with their terms whilst civil law systems do not always do so. In reality, this is wrong. Civil law systems do enforce contracts in accordance with their terms—just as much as common law systems. Common law practitioners familiar with civil law systems, such a John Fellas, know this perfectly. 

The fault does not lie with common law practitioners but with civil law practitioners themselves. They are the ones to blame. They are so fond of the concepts that populate civil law, such as good faith and the preeminence of the real intention of the parties, that they often focus on those concepts in the abstract and never explain how they are supposed to operate in practice. This leads to certain myths that fuel the perception that choosing a civil law system will increase judicial uncertainty because courts and arbitrators enjoy greater powers to depart from the contract when interpreting it. 

Three myths are particularly persistent in that regard. The first myth is that the text of the contract is not the most important factor when interpreting a contract (I). The second myth is that the principle of good faith can alter, and often lessen, the substance of a contractual obligation (II). The third myth is that taking into account the course of dealing will result in a modification of the contract (III).