WIPO Arbitration and Mediation Center - Chapter 12 - Performance as a Remedy: Non-Monetary Relief in International Arbitration: ASA Special Series No. 30
Erik Wilbers is the Director of the WIPO Arbitration and Mediation Center. Following studies in the United States and The Netherlands, Erik Wilbers was a research fellow at the Max Planck Institute for Intellectual Property Law in Munich. Before joining WIPO in 1996, he practiced with the law firm of Clifford Chance in Amsterdam, worked for one of the Chamber Chairmen of the Iran-United States Claims Tribunal in The Hague, and headed a division of the United Nations Compensation Commission dealing with claims arising from the Gulf War (1991).
Ignacio de Castro is the Deputy Director of the WIPO Arbitration and Mediation Center. Mr. de Castro is a Spanish lawyer and an English solicitor. He holds an LL.M degree from King’s College London. Before joining WIPO in 2002, he was on the legal staff at the United Nations Compensation Commission and, prior to that, practiced with the law firm Freshfields Bruckhaus Deringer, London in the areas of international arbitration and litigation.
Eun-Joo Min is the Head of the Legal Development Section of the WIPO Arbitration and Mediation Center. Ms. Min holds a Ph.D. in law from Yonsei University in Seoul and was a Fulbright Scholar at the University of Michigan Law School. Prior to joining WIPO she taught international law and international economic law at the International Division and College of Law at Yonsei University.
Sarah Theurich is a Member of the Legal Staff of the IP Disputes Management Section at the WIPO Arbitration and Mediation Center. Ms. Theurich, a national of Germany, holds a Master in industrial property from the University Panthéon-Assas in Paris and an LL.M in intellectual property and arbitration from the Queen Mary University of London. Before joining WIPO in 2006, she worked in an intellectual property law firm in Paris.
The WIPO Arbitration and Mediation Center (the Center) has administered several cases where specific performance was sought as a remedy. These cases form part of the Center's total caseload, which thus far encompasses over 240 mediations and arbitrations. The subject matter of those proceedings includes patent infringements, patent licenses, Information Technology related agreements and telecommunication agreements, distribution agreements for pharmaceutical products, research and development agreements, trademark co-existence agreements, consultancy agreements, art marketing agreements and joint venture agreements.
Many of the contracts including WIPO arbitration or expedited arbitration clauses foresee a preliminary WIPO mediation phase. Given the nexus between mediation and arbitration, the examples set out below include reference to mediation cases where specific performance remedies were sought.
Although monetary relief is often sought in WIPO cases, in light of the long-term contractual relationship that has developed between parties, in many of these cases the request for monetary relief is preceded by a request for a declaration of non-performance of contractual obligations or of infringement of rights. In our experience, it might be fair to presume as the true purpose of a number of such claims the clarification of the parties' rights and obligations under the contract and its possible re-negotiation (e.g., amended or new licensing terms permitting a continued business relationship between the parties). To that extent, even such ostensibly monetary claims might in certain cases properly be categorized as seeking non-monetary relief.
However, apart from this general point, the examples set out below consist of cases where one of the specified categories of specific performance has been expressly requested. In particular, the relief granted has included: