“Gap Filling” by Arbitrators

Abstract

The notion of a contractual “gap” is an evanescent one, which can — and often does — mean everything and nothing. It could perhaps be said that the very notion of a “gap” is simply incoherent — for once we are satisfied that the parties have entered into a “contract,” there can by definition be no “gaps.” Indeed, by its legal definition a “contract” cannot be incomplete. Or perhaps it could be said that, by contrast, there are nothing but “gaps” — that unless the parties have taken the pains to construct an infinite agreement, mapping onto every conceivable state of the world, likely or unlikely, known or unknown — then courts must be free to reconstruct or interpolate.