Judicial Penalties and Specific Performance in International Arbitration - Chapter 22 - Performance as a Remedy: Non-Monetary Relief in International Arbitration: ASA Special Series No. 30
Alexis Mourre is a Member of the Paris Bar as well as of the London Law Society (Foreign Lawyer) and specialises in international arbitration and international litigation. He is a Founding Partner of Castaldi Mourre & Partners. He has served as counsel to party, co-arbitrator, sole arbitrator or expert in more than 130 international arbitral procedures, in commercial as well as investment cases, both ad hoc and before the most prominent arbitral institutions (including ICSID). He is Vice-President of the ICC International Court of Arbitration and Senior Vice-Chair International Bar Association Arbitration Committee. Mr. Mourre is the author of numerous books and publications in the field of international business law, private international law and arbitration law. He directs the Cahiers de l’Arbitrage, a leading French publication in the field of arbitration. He is fluent in French, English, Italian and Spanish. He has a working knowledge of Portuguese.
The terms “judicial penalty” (or astreinte) define the decision taken by a judge or an arbitrator that a party will have to pay a certain amount of money in case of failure to comply with a given obligation. Such amount of money generally consists in a lump sum payable for each day, week or month of delay since the date when the debtor’s obligation became due and until it is complied with, or as long as the debtor is found in breach thereof.
Judicial penalties can be applied to obligations of a procedural nature (such as the obligation to produce a document or to refrain from enforcing a bank guarantee during the time of the proceedings) or to a substantial obligation deriving from the contract, such as the delivery of a good or the performance of works (in which case they will be hereinafter referred to as “substantial penalties”). Substantial penalties are applied to obligations to do or to refrain from certain behaviour (obligations de faire ou de ne pas faire), and to obligations to deliver a good (obligations de donner). Their admissibility is more debatable in respect to monetary obligations, as compliance with an obligation to pay an amount of money can be compelled by other means, such as attachment of bank accounts.1 In addition, the penalty would then play the same role as interests, which in many jurisdictions have both a moratorium and comminatory function. Yet, judicial penalties may be applicable to certain monetary obligations, such as paying a certain amount to a third party or opening an escrow account.