Le juge national et l'interprétation des contrats internationaux

Abstract

The writer considers the outlook of a judge trained in a specifie legal systetn and confronted with the task of interpreting a document submitted to him and introduced as an international contract. Certain preliminary questions arise, concerning the method applied by the judge to know whether the document is really a contract (and when does a contract qualify as international ?), the choice of law issues, the interpretation of related international treaties. One should not underestimate some devices that the judges have developed to cope with these problems. When some of the above mentioned questions have been addressed, one has still to consider how the contract will be interpreted. At first sight many superficial similarities seem to appear in the principles that the courts avowedly apply. But soon one can also detect noticeable differences : e.g. between the way French and Italian courts handle the civil codes rules on the interpretation of contracts. In the Common Law area one deals with the paroi evidence rule that, in generai ternis, prevents judges from taking notice of any extrinsic evidence. Finally, the writer considers how the parties may react when they realize such diverging judicial attitudes. They may try to side step the risk inherent in the interpretation process (by means of a meticulous definition of any possible event), by means of « merger clauses » and of adaptation clauses in long-term contracts.