In the summer of 2027, Giuditta Cordero-Moss of the Department of Private Law will deliver the prestigious “General Course” in private international law. The course runs for three weeks and is held annually at The Hague Academy in the Netherlands.
Legal scholars Sjur Brækhus, Geir Ulfstein and Giuditta herself have previously lectured at the Academy in the slightly smaller, but still highly prestigious, course known as the “Special Courses”. An invitation to deliver the “General Course”, however, is something quite exceptional. She is the first professor at a Norwegian university to do so. She is clearly honoured by the invitation and feels a great sense of responsibility for the task.
– The Academy was founded in the Netherlands just over 100 years ago. It is not intended to be an ordinary university with a permanent faculty providing legal education to students; rather, it is more of a research centre that invites internationally recognised professors, judges and diplomats, she explains.
Those attending the lectures are not ordinary undergraduate or postgraduate students, but experienced legal practitioners and lawyers, PhD candidates and diplomats from around the world working in international affairs. Places are limited, and the Academy is selective about who is chosen to attend the “General Course”.
– This is a great honour, both for Giuditta and for the Faculty of Law at the University of Oslo. The appointment recognises the impressive contribution Giuditta has made to private international law over several decades, through her research, public engagement and teaching. We congratulate her,” says Margrethe Buskerud Christoffersen, Head of the Department of Private Law.
Giuditta herself sits on the Academy’s Curatorium, which determines the academic programme. However, when the invitation for her to deliver the “General Course” was considered, she did not take part in the decision. The Curatorium has a long waiting list of qualified candidates to deliver either “Special Courses” or the “General Course”, based on their research and subject areas. These are planned well in advance:
– At our most recent meeting a couple of months ago, we selected the themes for 2031, says Giuditta as an example.
The “General Course” is delivered by a single professor, and is held in English one year and in French the next. Consequently, few professors are given the opportunity to deliver the “General Course” in English. This means that the members must think carefully about which professors they wish to invite.
The “contract bubble”
Before becoming a professor, Giuditta worked for 15 years as a corporate lawyer. She dealt with contracts and dispute resolution for major international companies, including the Italian company Fiat and Norsk Hydro. Through her background as both a lawyer and an academic in the field, Giuditta has gained considerable insight into how commercial agreements and contracts are drafted and interpreted. She describes contracts as stylistically similar, and as very long and comprehensive:
– All these contract templates that one uses, or sees other parties using, are quite similar to one another. They are all written in English, extremely detailed, and characterised by fairly standardised language. They regulate everything that the parties believe could become a problem, should problems arise.
Giuditta explains that this can create the illusion that the solution to everything has already been regulated in the contract, making contracts appear complete. Which country’s law applies in the event of a dispute is simply not taken into account when contracts are drafted:
– You do not care about what is called the "background law". You do not care what the law says, because you think that the contract constitutes the whole of the law. It is a very pronounced feeling that people have, she explains.
Should disputes arise between companies, they can be resolved through arbitration, an international private mechanism for dispute resolution. Most contracts contain an arbitration clause, which can give a sense of security. Giuditta explains that companies tend to perceive arbitrators as experienced and commercially minded, with a sound understanding of business conditions and contracts, and as people who find commercial solutions without looking too closely at the law.
– In a way, you live in your own little bubble – a commercial parallel world in which the contract and what the parties intended are the only things that matter. That is the impression one has. This is how a great many parties behave. They draft contracts without caring whether, for example, English law or Norwegian law applies. This is particularly so because any disputes go to arbitration, and they believe that arbitration has its own way of doing things.
But this approach has left Giuditta puzzled:
– From day one, I have wondered whether this is correct. English law, for example, is very different from Norwegian law. Does it not matter whether a contract is governed by one or the other? Everything I have written and published during my career as a researcher concerns this issue, viewed from different perspectives.
Empirical research undermines a common assumption about arbitration
According to Giuditta, an assumption has gradually emerged that international contracts are handled in a transnational and commercial manner, independently of national law:
– That is something I have challenged. Not only me – several others also disagree with that approach.
For the past 20 to 30 years, Giuditta has sought to disprove the idea that arbitration has a uniform way of interpreting contracts that is independent of national law. The research she will present in The Hague is primarily based on two projects.
In the first project, she was granted access to the archives of the International Chamber of Commerce (ICC), the world’s largest arbitration institution, which contain large amounts of confidential information. From the archives, she read arbitral awards from the years 2000, 2010 and 2020. Using statistical methods and assistance from social scientists, she mapped how often arbitral tribunals applied national law:
– More than 80 per cent did so. That means it does not correspond with the theory that, in practice, national law is not applied. I think that is an amusing result, Giuditta says with a smile.
In the second project, she invited 110 arbitrators from different parts of the world to take part in a survey. They were given ten case-based questions relating to hypothetical contracts, with the aim of mapping the approaches they took to the cases. The arbitrators could choose to base their decisions on national law, on the contract text associated with the scenario alone, or on transnational principles.The results revealed that approximately half of the arbitrators would attach importance to national law.
The researchers also found that, in some cases, arbitrators reached different outcomes even though they had chosen the same starting point. The legal basis on which an arbitrator relies does not therefore necessarily predict the outcome of a case. The arbitrator’s own interpretation may be more important than previously assumed, and may produce different results:
– It shows that there is no uniform way of reading contracts, even when the contracts are highly detailed. Nor is there a uniform transnational law. We have demonstrated this empirically.
Seven years of preparation
Giuditta was appointed to deliver the “General Course” as early as 2020. The Hague Academy has high expectations of the research presented by its lecturers: it must be new and ground-breaking, and suitable for publication in The Hague Academy’s prestigious Collected Courses book series. The series currently comprises 450 volumes and is regarded as one of the most important publications in public international law and private international law.
– That means you need to prepare, Giuditta says.
Conducting empirical studies relating to perceptions of arbitration had long been at the back of Giuditta’s mind. Had she not been due to deliver the “General Course”, the professor admits, she might never have embarked on such an extensive and time-consuming project.
– When they appointed me to deliver the course, I thought: "Yes, now I have a good reason to get started.”