Chapter 40 - Remedies (other than Damages) - Handbook on International Commercial Arbitration - Second Edition
While the most common remedy sought and granted in international arbitration is the award of damages, other remedies are, of course, also available.
Identifying the law that governs the availability of remedies can be problematic. Some commentators suggest that in civil law systems, remedies are considered part of the substantive law and will be governed by the same law that governs the substance of the parties' dispute—whilst in common law systems, remedies are a matter of procedure and are governed by the law of the seat. Applying this approach, if the seat of the arbitration is in a civil law country, the law governing the substance of the parties' dispute would apply to the question of remedies. By contrast, if the seat of the arbitration is in a common law country, the tribunal would apply the law of the seat of the arbitration to determine the availability of remedies.
Unfortunately, in reality, the position is not so clear-cut. It is not clear that common law courts will apply the law of the seat to all matters concerning remedies. For example, English law treats the quantification of damages as procedural, but the availability of various heads of damage as substantive. Furthermore, in the arbitration context, it is not entirely clear whether the English Arbitration Act 1996 treats remedies as procedural or substantive; that the parties may agree the availability of remedies suggests that it is substantive.
A tribunal is not obliged to apply the same approach to choice of law issues as would be adopted by a domestic court located in the same jurisdiction as the seat. A tribunal may, for example, be conscious that the seat of the arbitration has been chosen precisely because it has no connection with either party or their contractual relationship, to provide a neutral venue. It may accord with neither party's expectations that the law of the seat should be applied to determine available remedies.
Furthermore, the tribunal may be conscious of its obligation to render an enforceable award, and may be aware that applying the law of the seat could lead it to award a remedy that would not be enforceable at one or more likely enforcement venues.