chapter
10 Pages

Introduction

Legal interpretation has always been one of the focal issues for legal studies. The art of understanding, explaining and applying the law has for centuries intensely engaged jurists and philosophers, practitioners and the legal academia. The linguistic turn in the twentieth century philosophy, which also strongly affected jurisprudence, further drew the attention of the commentators to the discursive aspects of functioning of the law. A variety of streams in legal theory, from positivism and analytical jurisprudence to legal hermeneutics, sociolinguistics and semiotics, approached the phenomenon of legal interpretation and inevitable tension between the Montesquieuan striving towards discovery and transmission of the original meaning of the law, conventional character of interpretative canons and directives, and creative character of legal interpretation in its meaning-making and law-making aspects. As Roberto M. Unger observes, characterizing this dilemma, addressed predominantly by a strategy of rationalizing legal analysis:

New developments in philosophy and legal theory coincided with a rapid revival of arbitration as an extrajudicial method of resolution of cross-border commercial disputes. Unprecedented success of international commercial arbitration (ICA) in the past decades led to a change of its status from one of the available ways of addressing private controversies, related to trade exchange, to the default method of resolving them. It is, however, not only the vital, practical significance of ICA in commercial relations that makes it a highly compelling object of study – it is also the specific character of legal discourse realized in arbitration and determined by its unique structure. In its current, consolidated form, ICA functions through an institutionalized, private and highly competitive network of centres and expert communities, with a distinctive, evolving regional and global dynamics. This book aims at exploring the influence of this characteristic setting on legal discourse, and in particular on legal interpretation in arbitration. In the quickly changing field of commercial arbitration the ways of legal inquiry, as well as the

relevant argumentative repertory, have been developed in a specific and innovative way. Whereas to a large extent they have evolved from methods used in domestic adjudication, in many aspects they significantly differ from them.