Trans-Border Enforcement of Non-Monetary Arbitral Awards - Chapter 20 - Performance as a Remedy: Non-Monetary Relief in International Arbitration: ASA Special Series No. 30
Peter Schlosser is Professor Emeritus at the Law School of the Ludwigs-Maximilians-Universität of Munich. He received his legal education at the Law Schools of Würzburg, Bonn and Paris. He was visiting professor at the University of Michigan Law School (1989) and at the Chuo-University, Tokyo (1990). He was Dean of the Law Schools of the Universities of Marburg (1969/71) and Munich (1986/88). For eight years he was president of the “Wissenschaftliche Vereinigung für Internationales Verfahrensrecht” (1989/97). He was member of the commissions set up by the German Ministry of Justice for preparing the law on standard contractual terms und for the modernization of the tenth book of the German Code of Civil Procedure (dealing with arbitration). He was rapporteur of the Working Group of the Council of the European Communities for Preparing the Accession of the Kingdom of Denmark, Ireland and the United Kingdom to the “Brussels” Convention (drafting the so-called “Schlosser-Report”). He has been a member of the Board of Directors of the German Institute of Arbitration since 1981. He is the author of “Das Recht der Internationalen Privaten Schiedsgerichtsbarkeit” (2nd ed. 1989) and in “Stein/Jonas” Commentary on the German Code of Civil Procedure the commentator of the legal provisions dealing with arbitration (including the UN-Convention). He is acting as arbitrator in domestic and international matters.
Under the New York Convention, the principle of ubiquity of enforcement is the general rule: an arbitral award may be enforced in any of the almost 150 member states and, hence, for all practical purposes worldwide. No specific relation between the arbitration or the award and the State where enforcement is sought is required. Parallel Enforcement in two or more jurisdictions is permissible.1 As the Convention is conceived in view of monetary awards, this basic legal doctrine did not give rise to any major problems. If the creditor attempts to enforce an award that has been already enforced in another jurisdiction, the debtor always has access to an appropriate remedy, including interim protection.
In fact, for monetary relief, the traditional German approach has been to refuse even the declaration of enforceability if the award has already been paid2—by means of enforcement in another jurisdiction. Recently, some courts ruled that a declaration of enforceability may not be refused except where payment is beyond any doubt.3 However, be that as it may, some years ago the German Federal Supreme Court (Bundesgerichtshof) adopted a rule that disputes concerning whether an award may still be enforced or whether the award-debtor has already settled the award may be arbitrated.4 Practice nowadays seems to be that the arbitration agreement is deemed also to cover disputes on whether a pecuniary debt awarded by the arbitration tribunal has already been paid or has otherwise been extinguished. There is absolutely no reason why this rule should not similarly apply in the context of a foreign arbitral award, though no case on this issue has been published so far. Nor has, so far, any case been known where the debtor has been at risk to pay twice.
The legal situation is different in the case of non-monetary awards. The sanctions may be inflicted and enforced, yet the creditor has not received the performance in kind to which he is enttled under the award. In the case of an astreinte he may have received a substantial amount of money, but performance in kind may still be lacking, let alone payment of damages. The issue under discussion here is therefore whether the principle of ubiquity also applies to non-monetary relief, and if it does, whether sanctions in multiple jurisdictions may be cumulative? If this were so, this prospect may give rise to a strong incitement for enforcement-shopping.
Indeed, apparently there is no reason why the ubiquty principle of the New York Convention should not be valid for non-monetary relief as well. Due to that principle, efforts in view for non-monetary relief as well. Due to that principle, efforts in view of enforcement-shopping in cases seeking non-monetary relief will likely have a chance to become successful.5 However, the accumulation of sanctions must be stopped at some point. I will confine my remarks to three enforcement devices.