The Power of Arbitrators to Make Pro Futuro Orders - Chapter 3 - Performance as a Remedy: Non-Monetary Relief in International Arbitration: ASA Special Series No. 30
David Ramos Muñoz is an Assistant Professor at Universidad Carlos III de Madrid where he teaches Commercial and Corporate and Securities Law. He graduated in Law and Business Administration from Universidad Carlos III de Madrid as the top student of his class. After a year in the private sector (J&A Garrigues) and a brief spell at Freshfields London as a result of his winning a Freshfields prize for best European Business Law Student, he got his Master in Private Law at Universidad Carlos III de Madrid with a dissertation on “Specific Performance in Commercial Arbitration”. He later obtained his PhD from the University of Bologna (Italy), with the thesis “Securitization and Special Purpose Vehicles in an International Setting: A Systemic View”. His work for his PhD led to the publishing of his book “The Law of Transnational Securitization”, Oxford University Press, 2010. Dr. Ramos Muñoz has published in different journals, and conducted graduate and postgraduate teaching inside and outside Spain. He has also been coaching the team of Universidad Carlos III in the Willem C Vis Moot for several years, including 2008, when the team was the champion of the competition; and he currently coordinates the Moot Madrid, the first mooting competition in arbitration and uniform law in Spanish. His interests are, on the one hand, in the field of international and comparative contract and arbitration law; and, on the other hand, on the law of financial markets and financial transactions. He is married and with one child, and enjoys reading when he succeeds in getting the time; which is not so often.
Specific performance constitutes, in common law parlance, the order of a court by which the breaching party to a contract is compelled to perform the activity contemplated in the contract.1 In civil law countries, specific performance is considered a normal remedy that may be requested by the aggrieved party in case of any breach of any contract.2 Common law countries, on the other hand, have developed a very particular system of protection of rights, which has traditionally condemned specific performance to a sort of ostracism among the remedies for breach of contract.3 The traditional view notwithstanding, even the most recalcitrant detractors of specific performance now admit that it may constitute a useful remedy, and thus its role in contract law should be expanded.4 Then, if the tendency points towards the admission of non-pecuniary remedies in ordinary jurisdiction, why make such a fuss about non-pecuniary remedies in arbitration?
The answer is legal only in part, as the problem has also psychological side. One of the foundations of arbitration is the emphasis on preserving its nature as an alternative disputes resolution means, offered together with plain application of the law, commercial expertise, and a careful analysis of the specific facts of the case. The final aim of all this is to back the decision with the strongest power of all: the power of common sense.5