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    “Gap Filling” by Arbitrators

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    2014_06_Gap-Filling-by-Arbitrators.pdf (1.438Mb)
    Date
    2014-10-24
    Author
    Rau, Alan Scott
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    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.
    Department
    The Kay Bailey Hutchison Center for Energy, Law, and Business
    Subject
    international arbitration
    arbitration
    arbitrators
    contract
    contractual gap
    courts
    gap
    infinite agreement
    Oxford Health
    Stolt-Nielsen
    Supreme Court
    URI
    http://hdl.handle.net/2152/28755
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