English and Swiss law are, respectively, the first and second most frequently chosen governing laws in international contracts, at least according to the International Chamber of Commerce’s statistics on contracts giving rise to arbitration under the ICC Rules of Arbitration1. The difference between the approaches of these two systems to the interpretation of contracts, and in particular between the principles underlying those approaches, are, at first glance, marked. The English law approach, and more generally that of common law systems, is often characterised as an “objective” approach which is focused on the terms of the contract and shuns extrinsic evidence. In contrast, Swiss law, along with other civilian systems, is usually said to adopt a “subjective” approach which focuses on the real intentions of the parties. However, the distinction between the English and Swiss approaches, and more generally between common and civil law systems, is far more nuanced than the subjective versus objective dichotomy would suggest.

While the fundamental starting points of contract interpretation under Swiss and English law are at diametrical odds, a closer look at the doctrine and jurisprudence in both systems reveals a number of common features in their approaches to interpretation. In particular, the wording of a written contract, and how a reasonable person would interpret it, plays a far greater role in Swiss law than the popular perception of contract interpretation in civilian systems would suggest. Notwithstanding these similarities, certain features of the Swiss approach to contract interpretation, for instance the simplicity of its approach to the admissibility of evidence, might in fact make it better suited to the realities of international construction contracts. This paper explores why that might be the case in light of a number of particularities of international construction contracts.