Specific Performance in International Arbitration

Abstract

This article considers the definition of specific performance and examines the differences that are said to exist between the common law and civilian legal systems in relation to the availability of specific performance. As far as the availability of specific performance in international arbitrations is concerned, it is argued that arbitral tribunals generally have the jurisdiction to make a specific performance order and that there is no basis for the conclusion that arbitral tribunals should exercise their jurisdiction on a more restricted basis than would an ational court. It is also argued that, as ag eneral matter, a specific performance order made by an arbitral tribunal should be no more likely to be challenged successfully, or its enforcement successfully resisted, than would be the case where the same order was made by a court. It is, however, acknowledged that there may be practical difficulties in enforcing a specific performance order made by an arbitral tribunal, an illustration of which is provided by reference to a recent award made in a China International Economic and Trade Arbitration Commission (CIETAC) arbitration.