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Performance as a Remedy: Non-Monetary Relief in International Arbitration

Performance as a Remedy: Non-Monetary Relief in International Arbitration ASA Special Series No. 30

Author: Michael E. Schneider; Joachim Knoll
Publisher: Juris Publishing
ISBN: 9781933833361
Published In: May 2011
Format: Paperback , 424 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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This publication contains the results of a research project carried out by the Swiss Arbitration Association (ASA) on a question that has received relatively little attention in legal commentary so far: performance as a remedy in international arbitration. Twelve contributions address, by reference to legal theory and to arbitration practice, the question of whether arbitrators can order a party to perform or abstain from performing certain acts (be it in the form of an interim order or in an award on the merits), in what circumstances, and how such orders are made and the issues of procedure and enforcement that they raise.

The particular value of the present compilation lies in the diversity of perspectives it presents. A thorough academic introduction of the subject is followed by reports from nine major international arbitral institutions, including the ICC, LCIA, ICDR/AAA as well as WIPO, Swiss, DIS, Vienna and KLRCA that provide a unique insight into their practical experience with performance as a remedy in arbitrations carried out under their auspices. Further, experts in the fields of corporate law, competition law, construction law, sports law, and international trade provide their perspective of performance as a remedy in their respective fields. Performance orders as interim measures are dealt with in a separate chapter. Particular attention is given to some of the difficult questions that arise when awards for non-monetary relief must be enforced.

Performance as a Remedy is indispensible in that it provides both analysis and practical guidance on the subject and is a major contribution to the field in this to further particularly challenging area of arbitration law.

Part I - Overview

Chapter 1: Michael E. Schneider
Non-Monetary Relief in International Arbitration - An Overview of Principles and Arbitration Practice

Part II - The Legal Regime of Specific Performance

Chapter 2: Christine Chappuis
A Comparative Overview on Performance as a Remedy: A Key to Divergent Approaches

Chapter 3: Professor David Ramos Muños
The Power of Arbitrators to Make Pro-Futuro Orders

Part III - Reports and Materials From Arbitration Practice

Chapter 4: Stefano Azzali / Valentina Renna
Chamber of National and International Arbitration of Milan

Chapter 5: Eric Biesel
Geneva Chamber of Commerce - Swiss Rules

Chapter 6: DIS Secretarial
German Institution of Arbitration (DIS)

Chapter 7: Manfred Heider
International Arbitral Centre of the Austrian Federal Economic Chamber (Vienna Chamber)

Chapter 8: Francesca Mazza
International Chamber of Commerce (ICC) - Selected Cases

Chapter 9: Ryan Boyle
International Centre for Dispute Resolution (ICDR) / American Arbitration Association (AAA) - Selected Cases

Chapter 10 : Mohd Hazly Bin M Rais
Kuala Lumpur Regional Centre for Arbitration (KLRCA)

Chapter 11 Wing Shek / Hannah Guest
London Court of International Arbitration (LCIA)

Chapter 12: Erik Wilbers / Ignacio de Castro / Eun-Joo Min
WIPO Arbitration and Mediation Center

Chapter 13: Michael E. Schneider
Various Other Cases

Part IV - Non-Monetary Relief in Different Types of Contracts

Chapter 14: Rudolf Tschäni
Corporate Disputes

Chapter 15: Siegfried Elsing
Performance as a Remedy: Specific Issues relating to Competition

Chapter 16: Roland Hürlimann
Specific Performance as Remedy in Construction and Manufacturing

Chapter 17: Henry Peter
Redress: A Remedy at the Limits of Traditional Remedies (The example of "Sailing Arbitration")

Chapter 18: Brooks E. Allen
The Use of Non-Pecuniary Remedies in WTO Dispute Settlement: Lessons for Arbitral Practitioners

Part V - Interim Measures

Chapter 19: Charles Kaplan
Interim Measures Ordering Performance: Procedural Implementation

Part VI - Enforcement of Specific Performance

Chapter 20: Peter Schlosser
Trans-Border Enforcement of Non-Monetary Arbitral Awards

Chapter 21: Hubertus Schumacher
Specific Problems when Enforcing a Non-Monetary Award in Austria

Chapter 22: Alexis Mourre
Judicial Penalties and Specific Performance in International Arbitration

Appendix

The ASA Research Project and the 2008 Basel ASA Conference

About the Editors:
Michael E. Schneider is a founding Partner of LALIVE in Geneva. He is the current President of the Swiss Arbitration Association (ASA). He has practiced international arbitration for more than 35 years, acting as counsel before arbitration tribunals under various rules, including those of the ICC, ICSID, Swiss Rules, Stockholm Institute, the Cairo Regional Centre for International Commercial Arbitration (CRCICA), European Development Fund and UNCITRAL, and before other international bodies, including the WTO Appellate Body and the United Nations Compensation Commission. He has also sat as arbitrator (chair, sole or co-arbitrator) under the rules of many institutions in Switzerland and abroad. Mr. Schneider is Vice Chair of the ICC Commission on Arbitration, and has been a member of several of its working groups (1998 and 2009 Revision of the ICC Rules, Construction, Pre-Arbitral Referee). He is also a member of the Executive Committee of the Dubai International Arbitration Centre (DIAC). Since September 2006 he has chaired the UNCITRAL WG II (Arbitration) on the revision of the Arbitration Rules.

Joachim Knoll is a Partner with the firm of Brown&Page in Geneva, specializing in international dispute resolution. He has acted as counsel and/or sole arbitrator in ad hoc proceedings (including under the UNCITRAL Rules) and in cases under the rules of the ICC, ICSID, and the Swiss Rules. Trained in Germany and France, he holds LL.M. degrees from Boston University School of Law and King’s College London School of Law. Mr. Knoll is admitted to the New York State Bar.

Contributing Authors:

Brooks E. Allen
Stefano Azzali
Eric Biesel
Ryan Boyle
Jens Bredow
Christine Chappuis.
Ignacio de Castro
Siegfried H. Elsing
Manfred Heider
Roland Hürlimann
Charles Kaplan
Francesca Mazza
Eun-Joo Min
Alexis Mourre
David Ramos Muñoz
Henry Peter
Peter Schlosser
Hubertus Schumacher
Sarah Theurich
Rudolf Tschäni
Erik Wilbers