The term "judicial penalty" (or astreinte) defines the decision taken by a judge or an arbitrator that a party will have to pay a certain amount of money in the case of failure to comply with a given obligation. Such an amount of money generally consists of a lump sum payable for each day, week or month of delay after the date when the debtor's obligation became due and until it has been complied with or as long as the debtor is found to be in breach of that obligation.

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 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 are referred to hereinafter 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 attachments of bank accounts. 2 In addition, the penalty would then play the same role as interest, which in many jurisdictions has 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. [Page53:]

One of the main characteristics of judicial penalties, be they procedural or substantial, is their comminatory nature. Their aim is not to compensate a loss suffered by the other party but to impose upon such party sufficient financial pressure to force it to perform its obligation without undue delay. The amount of the penalty is therefore determined by the judge in an arbitrary manner.

As judicial penalties are generally paid to the creditor, they may lead to the enrichment of the latter. As a matter of fact, judicial penalties are independent from the damages that the aggrieved party may subsequently be entitled to claim and might therefore be cumulated with said damages. 3 Judicial penalties would be deprived of most of their deterring effect4 if they were to be treated as a sort of advance on the damages to which the creditor would be entitled in the case of a refusal to comply. From that perspective, they can to a certain extent be compared to punitive damages.

Judicial penalties should be distinguished from contractual penalties and liquidated damages. 5 Judicial penalties are ordered by judges or arbitrators in order to ensure compliance with their orders. Their aim is to punish rather than to compensate a loss. Contractual penalties and liquidated damages, on the contrary, have a compensatory nature, and their amount can in some jurisdictions be reduced by the judge or the arbitrator if found to be in excess of the loss effectively suffered by the aggrieved party. 6 Judicial penalties should also be distinguished from statutory fines (amendes), as the latter are paid to the state rather than to the aggrieved party. The first are a private remedy, while the second are a public sanction reserved to national courts.

Substantial penalties may have the effect of reversing the burden of evidence. In France, for example, once the performance of an obligation has been ordered under judicial penalties, it is up to the debtor of that obligation to prove that performance took place within the prescribed time limit. 7[Page54:]

Judicial penalties can be provisionally ordered by the judge, in which case the final amount of the penalty has to be subsequently confirmed by the judge. Such a system, known as astreinte provisoire in France, is applied to substantial obligations and has the advantage of being extremely flexible and of allowing the judge to take account of all relevant circumstances, such as external causes of the delay in the performance, in order to modulate the final amount of the penalty. A judicial penalty can also be final (astreinte définitive), which means that the judge will not subsequently have to confirm its amount and that the debtor will have to pay it as multiplied by the number of days, weeks or months of delay in the performance. In France, unless the judge expressly decides that the penalty is final, it is in principle provisional.

Judicial penalties were introduced by French case law at the beginning of the 19th century, 8 and the availability of this remedy was confirmed in France by statute in 1972. 9Yet, the remedy is not universally admitted. It is unknown in certain countries, like Austria and Italy, 10 but is available in others, such as the Netherlands, 11 Belgium12 and Switzerland. 13 In other countries, comparable remedies exist to the effect of ensuring compliance with a court order. In Denmark, the tvangsbde is a daily fine, the purpose of which is to force the debtor to comply with an obligation. 14 Germany allows the debtor to be compelled to specific performance by way of fines, the payment of which, however, is not made to the creditor but to the state. 15 In Finland, the uhkasakko is applied in order to force a party to specific performance. 16 In Greece, a party in breach of an obligation can be ordered to pay a judicial penalty. 17 In Spain, the recent Statute on Civil Proceedings of 2000 introduced the multa coercitiva,18 and Portugal has the sançao pecuniaria compulsoria. 19 In England, the sanction of contempt of court can to a certain extent play a role comparable in its comminatory effects to a judicial penalty. 20

Although it would certainly be exaggerated to submit that judicial penalties are a generally admitted remedy in comparative law, it is noteworthy that the UNIDROIT Principles (2004) include a new Article 7.2.4 to the effect that (1) a tribunal that orders a debtor to perform its obligations can also impose a penalty upon the debtor if it does not comply with the decision; and (2) the penalty is payable to the creditor, unless the mandatory provisions of the lex fori provide otherwise, while payment of the penalty does not prevent the creditor from claiming damages. 21[Page55:] Said provision, which applies to substantial obligations, is directly inspired by the French astreinte in that it clearly states that the penalty is due to the creditor and that it may be cumulated with damages. However, the inclusion of substantial penalties in the UNIDROIT Principles should not be construed as turning such a remedy into a rule of the lex mercatoria or as giving it the status of a general principle of law. Although it is not within the scope of this article to analyse the status of the UNIDROIT Principles, 22 it seems clear that a rule such as the new Article 7.2.4 of the UNIDROIT Principles, which relates to the judges' powers in the exercise of their jurisdictional functions and which directly touches upon the organization of the judiciary, cannot be part of the lex mercatoria. Yet, it is certain that the new Article 7.2.4 reveals the existence of a certain consensus on the admissibility of judicial penalties. We shall see that, on the basis of that consensus, the power to order judicial penalties is now also admitted in many jurisdictions for arbitral tribunals (section I) but that it is still subject to certain limitations (section II).

I. Admissibility of judicial penalties in international arbitration

Judicial penalties may in certain circumstances be a flexible and efficient device for ensuring compliance with a court's decisions. As such, they are well suited to the needs of international arbitration, where efforts to increase the efficiency of the process have been at the heart of the arbitral community's attention in recent years. 23 As noted by Laurent Lévy, admitting arbitral penalties follows the contemporary tendency to reinforce the effectiveness of the arbitral process:

"a rule deprived of any sanction, in particular of any comminatory sanction, has limited efficacy: why should we blunt the sword of the arbitrator, who risks losing his sense of responsibility either by refusing the necessary measures in fear that they will not be complied with or that possible actions before the state judge will slow the arbitral proceedings or, on the contrary, by ordering said measures just to see if they will be complied with?"24

It is all the more so that obtaining judicial penalties from the judge once the award has been rendered raises a number of complex questions, both as to the determination of the competent judge25 and to his power to grant such post-award relief. 26[Page56:]

Outright exclusion of the arbitral power to order judicial penalties would therefore be unwarranted. From this perspective, the comment under the new Article 7.2.4 of the UNIDROIT Principles is worth quoting:

"while a majority of legal systems seem to deny [the power to order judicial penalties] to arbitrators, some moder n legislations and recent court practice have recognised it. This solution, which is in keeping with the increasingly important role of arbitration as an alternative means of dispute resolution, especially in international commerce, is endorsed by the Principles. Since the execution of a penalty imposed by arbitrators can only be effected by, or with the assistance of, a court, appropriate supervision is available to prevent any possible abuse of the arbitrators' power." 27

As far as substantial rights are concerned, arbitral case law has not yet brought the demonstration that the new Article 7.2.4 of the UNIDROIT Principles reflects a general practice. Only in a limited number of cases have arbitral tribunals applied judicial penalties. In ICC Case No. 6673, 28 the arbitral tribunal enjoined a party from using certain know-how, without however ordering a penalty in case of a breach of this order. A decision awarding performance in kind was also adopted in ICC Case No. 7453. In ICC Case No. 7895, 29 a party requested an order enjoining the other from selling certain products subject to a fine for each item sold in breach of the injunction. The arbitral tribunal held that the granting of such relief was "in no way inconsistent" with the ICC Rules of Arbitration. The arbitral tribunal further noted that

"in this arbitration, there is no agreement of the parties which would forbid the granting by this tribunal of an injunction coupled with a fine".

The tribunal concluded that

"it has the power, under the ICC Rules, to grant an injunction coupled with a fine, unless a mandatory provision of French procedural law, the procedural law of the place of this arbitration, requires otherwise. In that regard, French courts and French legal authors have found that arbitrators have the power to grant an injunction coupled with a fine." [Page57:]

According to Ali Yesilirmak, 30 another arbitral tribunal took a similar position in ICC Case No. 9301. Conversely, a request for judicial penalties seems to have been rejected in Zurich Chamber award ZHK 273/95. Although there are certainly a number of unpublished awards that also ordered penalties to enforce an order or an injunction, this limited number of arbitral decisions is certainly insufficient to conclude that judicial penalties have become common arbitral practice. Yet, a brief overview of national legislations shows that judicial penalties are nowadays frequently considered as being part of the powers of arbitral tribunals.

French case law consistently held that the power to issue injunctions and order penalties in order to ensure their enforcement is part of the jurisdictional powers of arbitral tribunals. 31 In Belgium, Article 12 of the Statute on Arbitration of May 19, 1998 introduced into Article 1709 bis of the Code of Judicial Procedure a provision allowing arbitrators to order judicial penalties. 32 In the Netherlands, Article 1056 of the Code of Civil Procedure grants the same powers to arbitrators. Such power also seems to be admitted in Swiss law. 33 In the United States, the Uniform Arbitration Act gives arbitrators considerable powers to enforce their procedural orders. 34

To our knowledge, Sweden is the only jurisdiction where the power of arbitrators to order judicial penalties is excluded by the law, although this prohibition only applies to procedural orders. 35 In Italy, Article 818 of the Code of Civil Procedure excludes the power of arbitral tribunals to order provisional or conservatory measures, which therefore also applies to judicial penalties meant to enforce such measures. As to substantial judicial penalties, they would probably also have to be ruled out. 36 In most jurisdictions, however, the law is silent as to the powers of the arbitrators to order judicial penalties. In such jurisdictions, the issue is therefore whether such silence should be construed as excluding the power to order penalties. That question is particularly relevant for procedural penalties, since, as we shall see below, the power to order substantial penalties derives from the lex causae rather than from the law applicable to the arbitral agreement. In respect to this problem, two theories can be used: that of the inherent jurisdictional powers of the arbitral tribunal and that of the parties' implicit or explicit consent. [Page58:]

The inherent powers theory is based on the assumption that fulfilling a jurisdictional function necessarily implies that certain powers are conferred upon the judge or the arbitrator. Under this theory, the arbitrators' power to order judicial penalties does not derive from a construction of the arbitral agreement but from the very nature of their function. This of course does not imply that the parties would not be able to exclude such relief, 37 but that, in absence of such exclusion, there is no special requirement of parties' consent to enable arbitrators to resort to such a punitive remedy. The inherent powers theory was initially developed by certain common law authors38 in order to justify the arbitrators' powers to order provisional measures. 39 Although criticized by some, 40 it has been endorsed by the French courts. In its decisions of May 24, 1991 and October 7, 2004, the Paris Court of Appeals held that the power to order judicial penalties was "an inherent and necessary extension of the jurisdictional function". 41 That view is consistent with the jurisdictional conception of the arbitrator's role. According to this approach, what the arbitration agreement is all about is to entrust a third party to perform a jurisdictional activity, and the arbitration agreement therefore vests the arbitral tribunal with all the powers that are necessary to carry out said activity. Unless the parties expressly decided to exclude either powers - which should be possible provided that the excluded power can be disposed of without affecting the very nature of the jurisdictional function - it should consequently be considered that the arbitrators dispose of all the powers necessary to fulfil their mission. 42

The other possible approach is based on an interpretation of the arbitral agreement in order to verify that the parties have consented to the arbitrators' power to order judicial penalties. Such an approach has many inconveniences. Most of the time, as a matter of fact, the arbitral agreement will be silent on the issue of judicial penalties. As far as institutional arbitration is concerned, applicable rules will generally provide for the power of arbitral tribunals to take provisional and conservatory measures, subject to the mandatory rules of the seat of the arbitration, but will be silent on judicial penalties. In addition, judicial penalties are not necessarily to be considered as a provisional or conservatory measure. [Page59:]

How then should a silent arbitration agreement be construed? One option would be to consider that, absent a specific provision granting arbitrators the power to order judicial penalties, the parties are deemed not to have consented to such relief. This opinion has been submitted by Jean-François Poudret and Sébastien Besson:

"[W]e do not think that ordering an astreinte concerns the conduct of the arbitral proceedings in the meaning of Article 182(1) of the PILS, but rather that the arbitral tribunal uses a special power pertaining to its jurisdiction. Since the PILS does not confer jurisdiction in this respect on the arbitral tribunal ex lege, unlike PILS, Art. 183(1) with regard to provisional measures, such power may not simply be presumed but must result from the arbitral agreement and in consequence conform with the formal requirements of PILS, Art. 178(1)." 43

Yet, as far as substantial penalties are concerned, the same authors add that the lex causae would be sufficient grounds for the arbitrators' powers to order them:

"[A]n exception must be made where the lex causae allows an astreinte as an accessory remedy. Arbitrators can apply such lex causae in its entirety and order an astreinte, but in our opinion only to reinforce a decision on the merits, of which the astreinte is an accessory, and not a procedural order." 44

As a consequence, judicial penalties would be excluded from the arbitrators' powers in two situations: in respect to procedural penalties, absent a special provision to this effect in the arbitration agreement, and in respect to substantial penalties, absent a substantial rule allowing them.

As far as procedural penalties are concerned, such an approach consists in returning to the old theory according to which the arbitral agreement should be construed in a restrictive manner. This theory, which has been applied in a certain number of awards, 45 has now been superseded. 46[Page60:]

There is no reason, in the absence of an express provision in the arbitration agreement permitting arbitrators to order judicial penalties, to exclude such a power on a general basis. For example, it is admitted that the silence of the lex arbitri on the arbitrators' powers to order provisional measures should not be construed as a general exclusion of said power. 47 The same principle should apply, with the reservations analyzed below, to judicial penalties. In order to avoid the negative consequences of the restrictive approach, which has just been described, Laurent Lévy has submitted that "a tacit consent is sufficient [to the effect of admitting the arbitrators' power to order judicial penalties]". 48 Nevertheless, most of the time, the parties will not have considered the issue of judicial penalties when negotiating their arbitration agreement. What should then be the basis for holding that the parties implicitly consented to the arbitrators applying such a remedy, if not that such a power has not been excluded? From this perspective, the result reached by applying the implicit consent theory is very close, if not identical, to that obtained on the basis of the inherent powers theory: absent any statutory provision to the contrary, the powers of the arbitrators to order judicial penalties should be admitted unless the parties expressly agreed to exclude it.

What should be the form of an arbitral decision to order judicial penalties? As far as substantial penalties are concerned, the order should certainly be rendered in the form of an award if it applies to a final decision. As a matter of fact, by ordering a party to comply with its substantial obligations, the arbitral tribunal will decide the merits of the dispute. 49 Regarding procedural penalties and penalties relating to provisional or temporary measures, the problem is no different than in respect to other provisional decisions. As a matter of principle, judicial penalties are meant to be enforced, and, most of the time, this will entail the rendering of an award.50 In some jurisdictions, decisions ordering provisional or temporary measures may be enforced as awards, and this may also apply to decisions ordering judicial penalties on a provisional or temporary basis. 51 In jurisdictions that provide for a mechanism of assistance by local courts to enforce provisional measures based on the new Article 17 of the UNCITRAL Model Law, however, judicial penalties relating to provisional measures may be ordered in the form of a procedural order. [Page51:]

Should an arbitral tribunal be allowed to order provisional penalties, that is to say, penalties the amount of which has to be confirmed by means of a subsequent decision (astreinte provisoire)? Such an order would certainly not be capable of being enforced, precisely because the provisional nature of the penalty implies a subsequent decision prior to any enforcement. 52 Yet, as arbitral tribunals may in certain cases modify or review provisional measures taken for the duration of the proceedings, they should also be capable of ordering penalties on a provisional basis, subject to final determination in the award of the amount due by the debtor in breach. 53 In theory, nothing should therefore prevent arbitral tribunals from ordering provisional penalties. Yet, such a possibility should be reserved for substantial obligations, as it would not make sense in respect to procedural orders. In addition, provisional penalties may in practice prove to be burdensome, as they imply a need to reconstitute the arbitral tribunal for the sole purpose of deciding the final amount of the penalty.

Even when it has been ordered in a final manner, a judicial penalty needs to be liquidated. Although the daily, weekly or monthly amount of the penalty will not be revisable, there might still be a dispute between the parties as to the date at which the obligation has finally been complied with or as to the periods of time during which compliance may have become impossible due to force majeure. Do such disputes fall within the jurisdiction of the arbitral tribunal? In a decision of October 11, 1991, the Paris Court of Appeals held that

"the competent jurisdiction to liquidate the penalty in a final manner - which issue cannot be dealt with by the arbitral tribunal as the same has no jurisdiction to deal with the enforcement of its awards - is, regardless of the jurisdiction regarding the merits of the dispute, the court of first instance, which has jurisdiction on issues relating to difficulties of enforcement." 54

Yet, there is no reason to consider that an arbitral tribunal should be deprived of jurisdiction to liquidate the penalty it has ordered. As a matter of fact, contrary to the reasoning of the Paris Court in the above-mentioned decision, this is not a matter that relates to the enforcement of the penalty but rather to the determination of the final amount in respect to which the creditor will be entitled to seek enforcement. [Page62:]

In addition, forcing the parties to resort to the competent state court of the place of enforcement to liquidate the penalty would be contrary to their legitimate expectation that their dispute be adjudicated out of national courts. It would therefore be preferable to admit that, when the arbitral tribunal is still in place or can be reconvened, the latter retains its jurisdiction to liquidate the penalty.

Finally, the issue may arise whether a state court may add to a specific performance award by ordering a party to comply with the arbitrator's decision under a penalty that the arbitral tribunal has not ordered. The solution to such a question depends on the lex fori. In France, the case law seems to admit such a possibility. 55

II. Limits to the arbitrators' powers to order judicial penalties

Contrary to an idea that has sometimes been put forward in order to justify the purported non-arbitrability of judicial penalties, such a remedy is not a measure of enforcement. Although judicial penalties are a sanction of a party's failure to comply with an order by the judge or the arbitrator, the aggrieved party always needs to resort to enforcement procedures in order to compel the payment of the ordered fine. The judge's intervention will always be necessary to enforce the penalty. From that perspective, judicial penalties are no different from any other arbitral relief, and there is no reason to exclude their arbitrability on the basis that they relate to the award's enforcement.

Yet, there may be other limitations on the arbitral tribunal's powers to apply judicial penalties. We will first deal with the idea that judicial penalties would require an imperium of which arbitrators would be deprived (1). Then we will examine the limits that may be imposed on the exercise of the arbitrators' power to order judicial penalties by the lex causae (2), by rules of public policy (3) or by state sovereignty (4).

1. The debate on the alleged lack of imperium of arbitral tribunals

The view has frequently been put forward that the power to order judicial penalties would imply an imperium of which arbitrators would be deprived, unless the parties expressly agreed to confer it on them. [Page63:]

In this respect, Pierre Mayer considers that

"the arbitrator, by rendering its award on the merit of the dispute, exercises a jurisdiction which does not include any imperium. Yet, this does not mean that the imperium, defined as the power to command the parties, would not be necessary in order to take certain preliminary decisions, and that the arbitrator would lack it in such occasions. If we admit that this imperium is distinct from the power to exercise a constriction, there is in theory no obstacle to the parties conferring to the arbitrator the power to give them orders. However, the only power which necessarily and directly derives from the arbitral agreement is that of resolving the dispute, in other words the jurisdiction. It is therefore to be concluded that any measure resorting from the imperium requires a special investigation in order to determine if the parties can be deemed to have granted the powers to take it to the arbitrator if they did not do so in an express manner, [and] if there are limits to the powers that an arbitrator can be allowed to exercise, including with the parties' consent."56

According to Pierre Mayer, judicial penalties would be part of those measures resorting from the imperium. As a consequence, absent a statutory provision allowing the arbitrator to order them or an express consent of the parties, the arbitrator should be deemed not to have such power: "Does the arbitrator dispose of the power to order a judicial penalty to ensure the enforcement of his orders? The parties may certainly agree to give him such power. Absent such an agreement, the law may provide for such arbitral relief. But in the silence of the law and of the parties' agreement, what arbitrator would dare using such a weapon? The arbitrator cannot presume that the parties tacitly consented to the arbitrator's right to punish them in case they would fail to comply with his orders." 57

This view, which has been expressed in similar terms by Jean-François Poudret and Sébastien Besson, 58 is in line with the traditional view according to which the arbitrator should limit itself to assessing what the parties' rights are and that it should not care about the efficacy of its decision. 59[Page64:]

Yet, in a fundamental study published in 1991, 60 Charles Jarrosson has shown that the concept of imperium has given rise to imprecise definitions, based on a somewhat artificial distinction with the jurisdictio. While the imperium encompasses all the powers of the judiciary, the jurisdictio is the power to say how the law should be applied to a given situation. The jurisdictio can therefore be considered as part of the more general and imprecise category defined as imperium. 61 In other words, exercising a jurisdictional function would always mean that a certain imperium is given to the judge, and the same would also be true for an arbitrator. Certain powers of the judiciary, however, are not part of the jurisdictio: the power of enforcing orders by resorting to the public force is one such power. Charles Jarrosson correctly qualifies such a power, consisting of forcing a party to comply by exercising a constraint, either directly or through an agent of the state to which the author of the order has the authority to give instructions, as imperium merum. 62 Orders that qualify as such are obviously not arbitrable, because the use of force is an exclusive prerogative of the state. Most of the debate on judicial penalties seems to have been troubled by the confusion between ordering the penalty and enforcing the penalty by using a measure of constraint. In addition, it could be submitted that a judicial penalty ordered by an arbitrator does not in itself imply any measure of constraint on the debtor: only the court decision granting the exequatur to the arbitrator's decision, or allowing its enforcement, would imply the use of force. From this perspective, ordering a judicial penalty would not represent the exercise of a power of imperium merum but would be an ancillary measure meant to ensure the efficacy of a decision taken by the arbitrator in the exercise of its jurisdictio. In other words, it would be part of the imperium mixtum, and there would consequently be no reason to deny the arbitrability of such a remedy accessory to the jurisdictio.

2. Limits on substantial judicial penalties: the principle of nemo praecise cogi potest ad factum

As stated above, judicial penalties may apply to procedural orders (e.g. an order to produce a document) as well as to substantial decisions

(e.g. an order to deliver a good pursuant to a sales contract). In the lattercase, substantial penalties will be ordered in order to compel a party to comply with its contractual obligations. [Page65:]

Substantial penalties are therefore intrinsically linked to the possibility of ordering specific performance of such obligations, as opposed to granting damages, which are an equivalent in money of the non-performed obligation. As a consequence, if specific performance is not permitted, there will be no room for substantial penalties.

While procedural penalties depend on the law applicable to the arbitral proceedings, substantial penalties as applied in case of specific performance should be regulated by the lex causae. The submission of substantial penalties to the lex causae is justified, as demonstrated by Horatia Muir-Watt, by the fact that the effects of the contract are defined by such law. For example, if a given contract is regulated by French law, which admits specific performance and judicial penalties, it would make no sense and may be contrary to the parties' legitimate expectations to exclude such remedies because the dispute is brought before a judge whose lex fori does not admit them. 63

Yet, international instruments seem to reserve a certain space to the lex fori as far as specific performance is concerned. The Rome Convention of 1980 provides in Article 10.1(c) that the consequences of a breach of contract are regulated by the law applicable to the contract, but within the limits imposed on the tribunal's powers by its lex fori. This provision, however, can be excluded as far as arbitral penalties are concerned. As a matter of fact, the Rome Convention applies to states and, by referring to tribunals, refers to the judiciary. This is of course not to say that arbitrators could not be prevented by law from ordering judicial penalties. This only means that the limitations imposed on the judiciary in respect to injunctions and penalties will not necessarily apply to arbitral tribunals and that one would have to look at prohibitions specifically imposed upon arbitrators by the applicable statutes on arbitration. In practice, the only known example of such a prohibition applies to procedural injunctions64 and not to substantial injunctions and penalties. As far as international sales of goods are concerned, Article 28 of the Vienna Convention provides that the judge is not compelled to order specific performance if he would not do so under his own law. Here again, however, this provision can be excluded as far as international arbitration is concerned. [Page66:]

As a matter of fact, international arbitral tribunals have no lex fori and, as a consequence, no internal law of their own that could prevent them from ordering specific performance. In sum, it can be concluded that, in international arbitration, the possibility for an arbitral tribunal to award specific performance and eventually to order penalties in the case of non-compliance is regulated by the lex causae. If such law admits such remedies, the arbitral tribunal will be entitled to apply them. 65 If not, such a remedy will be precluded.

When faced with a request to order specific performance of a contractual obligation with a penalty in case of non-compliance, the arbitral tribunal will therefore have to inquire whether such relief is permitted by the law applicable to the contract. In this respect, there are still important differences from jurisdiction to jurisdiction. In France, Article 1184, second paragraph of the Civil Code provides that the creditor of a contractual obligation has the right, if possible, to force the debtor to comply. In addition, albeit after some hesitation - notably in respect to promises of sale66 - the case law now admits specific performance as a relief in the case of a breach of a contractual obligation. 67 The same position seems to prevail in Belgium. 68 In the Netherlands, Article 3:296 of the Civil Code provides that the creditor of an obligation is entitled to ask the judge to order the debtor to perform it in kind. In Switzerland, Article 97 of the Code des obligations provides that the creditor of an obligation to do is entitled to claim performance in kind. Other civil law jurisdictions might, on the contrary, rely on the principle according to which the breach of an obligation to do or not to do only allows the aggrieved party to seek damages. In Germany, in cases where the relevant obligation can only be performed personally by the debtor, the court will, upon application by the creditor, impose a fine up to EUR 25 000 or alternatively a prison term up to two years if he fails to perform his obligation. 69 In England, the traditional view is that damages are the preferred remedy, and specific performance is ordered only on an equitable basis in cases where damages would appear not to be an appropriate remedy. 70 This is also the general solution in common law countries such as the United States, Canada and Australia, where courts are not bound to grant specific performance. In the United States, however, specific performance relief has been admitted in arbitration. 71[Page67:]

Nevertheless, even in jurisdictions where specific performance is allowed as a matter of principle, there are situations in which the admissibility of such relief is subject to the condition that the obligation does not have certain characteristics. This is the case for obligations having a strong personal character. In such cases, performance in kind may be deemed contrary to the principle nemo praecise cogi potest ad factum. This old Roman principle means that no direct constraint is admitted on the person of the debtor of an obligation to do. The principle was initially applied to all obligations, and Article 1142 of the French Civil Code, according to which any breach of an obligation gives rise to damages, has for long been understood in France as prohibiting in a general manner specific performance as far as obligations to do were concerned. In the Netherlands, judicial penalties are excluded in respect to obligations of a strictly personal nature. 72 The rationale for such prohibitions resides in the dignity of the human being, who should not be compelled to perform an activity against his or her will. 73 The meaning of the principle has, however, evolved in many jurisdictions. In many civil law and common law systems, the prohibition of specific performance as a remedy is limited to those obligations that are of a strictly personal character. 74 An example of such an obligation of a strictly personal character is the obligation to deliver a work of art, such as a book or a painting, or any activity requiring an intellectual creation. Yet, applying such a criteria to obligations such as to perform construction works, to deliver a sold good, to allow the use of know-how or to sell an asset may in certain cases be more difficult. These are issues that need to be considered on a case-by-case basis, and the solution thereto may be different depending on each country's conceptions. Another issue is whether the relief is at all appropriate according to the circumstances of each individual case. For example, faced with the firm refusal of a party to continue a long-term cooperation agreement implying the proactive participation of the parties' personnel, such as engineers, an order for specific performance may make little sense, and rather than ordering penalties a wise arbitrator will prefer to award damages. [Page68:]

As rightly noted by Florence Bellivier and Ruth Sefton-Green:

"If, from a certain perspective, the obligation can be considered as a circulating asset, from another point of view one cannot avoid to be stricken by an ever increasing phenomenon of personalisation of the contract. We can think here to all these sophisticated agreements (for example agreements for software maintenance) which require from the parties a long-term cooperation, both at the stage of the formation of the contract and at that of its performance, obligations in respect to which the requirements of loyalty, good faith, including contractual solidarity, have been underlined. It can be submitted, without paradox, that the more a contract is personalised, the more money is an acceptable and satisfactory equivalent in case of non performance by one of the parties of its obligations. As a matter of fact, the more refined and complicated is a human relationship, the less reasonable it is to force the parties to be bound thereto against their will." 75

The case has been made that there exists a general incompatibility between performance in kind and international arbitration. 76 According to one author,

"parties to an international contract should not have the option to provide that an eventual dispute should be finally settled by an arbitral award of specific performance of the contract, and … even where parties specify that the substantive and/or procedural law of a certain state is to govern their dispute, such an election should not necessarily be construed to include acquiescence to a final remedy of specific performance, [which] should not be applied." 77

The basis for such a general exclusion of remedies in kind in international arbitration would be that

"a meaningful enforcement of an award of specific performance would effectively require conscripting one or more foreign courts to supervise the implementation of the arbitrator's decree. Such a process would, accordingly, imply a role for the enforcing court that the treaty establishing the current system [the NY Convention] did not contemplate, and a corresponding risk that national courts will engage in the sort of judicial review of arbitral decisions that so plagues the system of mutual recognition of foreign judgments." 78[Page69:]

Yet, court intervention at the award's enforcement stage does not imply any judicial review of the award itself. Even in countries where performance in kind is perceived as an equitable remedy, courts have accepted that they have no right to review the arbitrators' decision in this regard. 79 In addition, if an award of specific performance is coupled with judicial penalties, the enforcement will entail the payment of a certain amount of money, like any award for damages. Whether specific performance can be awarded is therefore an issue for the applicable law to resolve. Positing a general incompatibility of remedies in kind with international arbitration would restrict, because they opted for arbitration, the parties' rights to specific performance in cases where the applicable law would on the contrary admit such a right.

3. Public policy considerations

The arbitral power to order judicial penalties may be limited by statutory provisions. As we have noted, this is the case, for example, in Sweden in respect to procedural penalties. However, other considerations may also come into play. In some jurisdictions, judicial penalties may be prohibited insofar as they would lead to an undue enrichment of the creditor. Although this view has now been superseded in France, French case law used to consider that the amount of the penalty should be limited to the loss effectively suffered by the creditor. 80 This was also the case in Belgium prior to the Law of 31 January 1980. 81 In common law countries, judicial penalties are perceived as an undue advantage to the creditor, and failure to comply with an order for specific performance is sanctioned by fines or measures of physical constriction (contrainte par corps). 82 In Denmark, the amount of the fines that a tribunal may order to compel the debtor to specific performance is limited by statute. 83 Other jurisdictions, like Greece, cap the judicial penalties that can be ordered in the case of specific performance. 84 In Germany, judicial penalties are payable to the state, which could be taken as an exclusion of the payment of penalties to the creditor in addition to compensatory damages. 85 Other jurisdictions might prevent the creditor from receiving penalties in an amount exceeding its effective losses. In certain countries, specific performance might be precluded due to the availability of other means of satisfying the creditor's right. [Page70:]

Typically, that is the case when the law provides for the performance of the contract by a third party or for the release of a judicial decision having the effect of the unperformed obligation. That is the case in Italy, where Article 2932 of the Civil Code contemplates that, in the case of a promise to conclude a contract, the judge can render a decision having the same effect as the promised contract. Finally, in certain jurisdictions, like England86 and Ireland, 87 arbitration statutes limit the arbitrators' power to order specific performance in respect to contracts relating to land. These are rules that arbitral tribunals should take into account.

Arbitral tribunals may also be faced with the difficult issue of whether judicial penalties can be applied ex officio. According to Laurent Lévy, applying judicial penalties ex officio would be an excess of powers for arbitrators sitting in Switzerland. 88 In Belgium, the Law of 31 January 1980 provides that the judge may order judicial penalties at the request of the parties, 89 which prevents arbitrators sitting in this country from applying such a remedy proprio motu. In France, on the contrary, the Paris Court of Appeals refused to set aside an award where the arbitral tribunal had applied judicial penalties that had not been asked for by the claimant. 90 This position can be explained by the concept according to which, as noted above, the power to order judicial penalties does not derive from the parties' consent but is an inherent and necessary part of the arbitrator's jurisdictional powers. 91 Greece also allows judicial penalties to be ordered ex officio. In any event, even in jurisdictions where the arbitral tribunal may apply judicial penalties of its own motion, the principle of contradiction should be respected as a matter of procedural public policy, and the parties should therefore be invited to submit their observations on the contemplated remedy.

4. State sovereignty

May an arbitral tribunal order specific performance, as the case may be coupled with judicial penalties, against a sovereign state? There are few examples of such decisions. 92[Page71:]

In most cases, the relief has been denied as interfering with the state's sovereignty. In BP v. Libya, the arbitral tribunal held that

"a rule of reason therefore dictates a result which conforms both to international law, as evidenced by State practice and the law of treaties, and to the governing principle of English and American contract law. This is that, when by the exercise of sovereign power a State has committed a fundamental breach of a concession agreement by repudiating it through a nationalization of the enterprise and its assets in a manner which implies finality, the concessionaire is not entitled to call for specific performance by the Government of the agreement and reinstatement of his contractual rights, but his sole remedy is an action for damages." 93

The problem has recently been dealt with by an ICSID tribunal in a decision on provisional measures. 94 The arbitral tribunal, after having recalled the decisions rendered in the Libyan cases rejecting specific performance, held that "specific performance will … be refused if it imposes too heavy a burden on the party against whom it is directed"

(§ 82). After having referred to Article 35 of the ILC Articles on State Responsibility, the tribunal concluded that

"to impose on a sovereign State reinstatement of a foreign investor in its concession, after a nationalisation or termination of a concession license or contract by the State, would constitute a reparation disproportional to its interference with the sovereignty of the State when compared to monetary compensation" (§ 84).

Should the exclusion of specific performance relief be limited to such cases of nationalisation or termination of a concession by the state? Future case law may provide us with an answer to that question. The case could be made that, as a matter of principle, there is no real difference in nature between an award for damages and an award for specific performance combined with judicial penalties, as both entail the payment of a certain amount of money. In both cases, the defendant may be compelled to comply with the award, and, in both cases, immunity issues may arise. It could therefore be held that the restitutio in integrum principle, according to which reparation should as far as possible wipe out all the consequences of the illegal act and re-establish the status quo ante, 95 can be equally served by an award of damages or by an award of specific performance. [Page72:]

As noted by the Occidental tribunal:

"full reparation can be achieved through restitution in kind - synonymous with specific performance - but if restitution in kind is not possible, then it can be achieved through monetary compensation." 96

Whether the arbitral tribunal will award one or the other therefore depends on the applicable law and the suitability of either remedy in each particular case. 97 Should the remedy be excluded in treaty-based arbitration and admitted in contract-based investment disputes? It is worth noting that, in a contract-based ICSID arbitration, the arbitral tribunal recently ordered provisional measures meant to preserve the claimant's right to a specific performance decision. 98[Page73:]

1
E-mail: amourre@castaldimourre.com. The author warmly thanks Laurent Lévy for his valuable comments.

2
In Belgium, the Law of January 31, 1980 introducing judicial penalties excludes such relief in respect to monetary obligations.

3
This is the case in France: Ph. Le Tourneau, Droit de la responsabilité et des contrats (Dalloz, 2004) p. 2584: "[l'astreinte] peut être prononcée contre tout débiteur récalcitrant et se cumule avec les dommages et intérêts, ce qui conduit à un enrichissement contestable du créancier." See also Cass. 1ère Civ. October 20, 1959, D. 1959, 537; Cass. 3ème Civ. October 23, 1974, Bull. Civ. III, 376; Cass. 2ème Civ. February 18, 1987, Bull. Civ. II, 48; Cass. 1ère Civ. February 28, 1989, Bull. Civ. I, 97. The same solution seems to prevail in Switzerland: L. Lévy, 'Les astreintes et l'arbitrage international en Suisse', Bull. ASA I, 2001, 24: "il ne s'agit nullement de réparer un dommage, peut-être inexistant: même dans le cas où le droit suisse s'appliquerait, les dispositions relatives à la responsabilité ou aux intérêts moratoires n'ont pas vocation à exclure l'astreinte qui échappe à leur domaine. Celle-ci s'ajoute le cas échéant à la réparation d'un éventuel préjudice."

4
A good example of the deterring effects of judicial penalties is the order that TV channels would pay fines up to EUR 2500 for each second of non-compliance with a given court decision (C.E. September 21, 1988, D. 1989, 124, note by Ch. Debbasch; January 20, 1989, D. 1990, 104, note by P. Huet).

5
The French Cour de cassation held that a clause included in a contract and providing for a penalty was not submitted to the regime of the astreintes, as "the clause at hand could not provide for a judicial penalty (astreinte), which measure of constriction is reserved to courts" (Cass. 1ère Civ. March 9, 1977, Bull. Civ. III, 150).

6
In France, Art. 1152 of the Civil Code.

7
Cass. Com. October 2, 2001, Rev. Procédures 2001, 226, note by F. Perrot.

8
Cass. Req. January 29, 1834, D.P. 1834, 1, p. 129; Grands arrêts de la jurisprudence civile, 11th edn., Vol. 2, p. 234.

9
Statute of July 5, 1972 on civil proceedings. The statutory rules applicable to judicial penalties were modified by a subsequent Statute of July 9, 1991. In its Barre and Honet decision of May 10, 1974, the French Conseil d'Etat held that "the possibility for judges to order judicial penalties to ensure the enforcement of both their judgements and their decisions relating to the proceedings is a general principle of law".

10
Judicial penalties are unknown in Italian law, save in very specific cases (judicial penalties may be applied in patents and trademarks, labour law and consumer law disputes).

11
Art. 1056 of the Code of Civil Procedure: "The arbitral tribunal has the power to impose a penalty for non-compliance in cases where the court has such power."

12
Art. 1709 bis of the Judicial Code: "The arbitrator may impose a fine on a party for noncompliance".

13
ATF 90 (1964) II 158 (163) c5. Penalties are provided in Section 76 of the Law on Civil Proceedings.

14
Based on the 1938 Law on the Recognition and Proof of Debts (Gaeldsbrevlov No. 146, 13). This solution has been abandoned in practice as a legal remedy.

15
Art. 888 of the Code of Civil Procedure (Zivilprozessordnung).

16
Art. 7, para. 1-14 of the Code of Civil Procedure.

17
Art. 946 of the Code of Civil Procedure.

18
Art. 709.1 of Statute of January 2000 on Civil Proceedings (LEC).

19
Decree 262 of June 16, 1983.

20
C. J. Miller, Contempt of Court (Oxford, Clarendon Press, 1989).

21
However, no reference to judicial penalties has been included in the European Principles of Contract Law.

22
See C. Seraglini, 'Du bon usage des principes UNIDROIT dans l'arbitrage international', 4 Rev. Arb. (2003) p. 1101.

23
See the Report of the ICC Task Force on Techniques for Controlling Time and Costs in Arbitration, chaired by Y. Derains and R. Newmark, ICC Publication No. 843; see also the recent changes in Art. 17 of the UNCITRAL Model Law.

24
Lévy, supra note 3, at p. 36.

25
In particular in view of the arbitration exception of Art. 1(2) of Regulation 44/2001 and the Lugano Convention.

26
For a recent decision in which the French juge de l'execution refused to order a judicial penalty in respect to an award ordering a party to transfer certain amounts on an escrow account because the award was not yet enforceable due to pending annulment proceedings, see Cass. 1ère Civ. July 4, 2007, Groupe Antoine Tabet v. Republic of Congo, No. 05-16586.

27
UNIDROIT Principles (2004) p. 217.

28
Collection of ICC Awards, Vol. III (ICC Publishing, 1992) p. 434.

29
11(1) ICC Court Bulletin (2000) p. 66.

30
A. Yesilirmak, 'Les mesures provisoires et conservatoires dans la pratique arbitrale de la CCI', 11(1) ICC Court Bulletin (2000) p. 34, footnote 22.

31
Cass. Civ. July 25, 1882, D.P. 1883, 243; Rennes, September 26, 1984, Rev. Arb. 1986, 441, note by J.-P. Ancel; Paris, May 24, 1991, Rev. Arb. 1992, 638, note by Pellerin; Paris, October 7, 2004, Otor Participations et autres c/ Carlyle Holdings et autres, JDI 2005, 341, note by A. Mourre and P. Pedone.

32
See G. Horsmans, 'La loi belge du 19 mai 1998 sur l'arbitrage', Rev. Arb. (1999) p. 529.

33
Lévy, supra note 3, at p. 25.

34
US Uniform Arbitration Act, Section 17(d): "the arbitrator may order a party to the arbitration proceeding to comply with the arbitrator's discovery-related orders, issue subpoenas for the attendance of a witness and for the production of records and other evidence at a discovery proceeding, and take action against a noncomplying party to the extent a court could if the controversy were the subject of a civil action in this State."

35
Art. 25-3 of the Swedish Law of March 4, 1999 on arbitration provides that "the arbitrators cannot issue injunctions with judicial penalties, nor resort to means of coercion to gather evidence". In this respect, see the critical comments of S. Jarvin in 'La nouvelle loi suédoise sur l'arbitrage', Rev. Arb. (2000) p. 149.

36
Art. 2930 et seq. of the Italian Civil Code relate to the performance in kind of obligations to deliver a good (Art. 2930), to do (Art. 2931), not to do (Art. 2933) and to execute a contract (Art. 2932). In the latter case, the Code provides for the power of the court to render a decision producing the effects of the contract. In the case of an obligation not to do, the Code only provides for the destruction of works realized by the party in breach. In the other cases, enforcement is remitted to the judge. Art. 612 of the Code of Civil Procedure refers, in this respect, to the possibility of having the obligation performed by a third party in lieu of the debtor.

37
According to Besson, inherent powers could not be excluded by the parties, which leads to the conclusion that the theory is ill adapted to arbitration: S. Besson, 'Arbitrage international et mesures provisoires', Etudes suisses de droit international, Vol. 105 (Société Suisse de droit international) p. 131.

38
Caron and Kohl, quoted by Besson, ibid., at p. 100.

39
Ibid., at pp. 128-131.

40
Ibid., at p. 131.

41
Paris, October 7, 2004, Otor Participations et autres c/ Carlyle Holdings et autres, JDI 2005, 341, note by A. Mourre and P. Pedone.

42
G. Keutgen and G.-A. Dal, L'arbitrage en droit belge et international, Vol. 1 (Bruylant, 2006) p. 328 , note "from a general perspective, the powers of the arbitrator are identical to those ofa judge. It is only at this condition that he will be able to correctly fulfil his mission."

43
J.-F. Poudret and S. Besson, Comparative Law on International Arbitration (Thomson Sweet & Maxwell) p. 540.

44
Ibid.

45
ICC Case No. 2138, JDI 1975, 934; ICC Case No. 2321, JDI 1975, 938; ICC Case No. 4392, JDI 1983, 907.

46
Fouchard Gaillard Goldman on International Commercial Arbitration (Kluwer, 1999); Besson, supra note 37, at p. 123.

47
Ibid., at para. 1314; Hascher, JDI 1993, 1081.

48
Lévy, supra note 3, at p. 29.

49
See, in French law: Paris, July 1, 1999, Société Braspetro Oil Services Company, Rev. Arb. 1999, 834, note by Ch. Jarrosson; Paris, July 7, 1987, Rev. Arb. 1988, 649, note by E. Mezger; Paris, November 10, 1995, Rev. Arb. 1997, 596, note by J. Pellerin.

50
Lévy, supra note 3, at p. 31: "the fact that an award is necessary may entail a more burdensome procedure; such inconvenience is limited, however, if compared to its advantages, namely the possibility to seek the exequatur, which will make the threat sufficiently deterrent to ensure that the order to which the penalty is be complied with."

51
In France, see Paris, October 7, 2004, Otor v. Carlyle, JDI 2005, 341, note by A. Mourre and P. Pedone; in the United States, see U.S. Court of Appeal, 7th Circuit, March 14, 2000, Publicis v. True North, Rev. Arb. 2000, 657, note by Ph. Pinsolle; Cahiers de l'arbitrage, Recueil, Vol. I (2000-2001) p. 376, note by E. Ordway and B. Derains.

52
It is noteworthy that Art. 43 of the Lugano Convention and Art. 49 of Regulation EC 44/2001 provide that provisional penalties are not capable of being enforced.

53
In respect to the possibility for arbitrators to order provisional penalties in Belgian law, see Horsmans, supra note 32, at p. 531.

54
Paris, October 11, 1991, Rev. Arb. 1992, 636, note by J. Pellerin.

55
Art. 33, para. 2 of the Statute on the Enforcement of Judicial Decisions of July 9, 1991 provides that the judge may order a party under penalty to comply with a final judgment if the penalty appears to be necessary under the circumstances. As far as arbitral awards are concerned, the Cour de cassation held in a July 4, 2007 decision (Cass. 1ère Civ. July 4, 2007, Republic of Congo v. GAT, Cahiers de l'arbitrage 2007/3, 35) that "the enforcement judge can only order penalties in respect to an enforceable title, even though provisionally enforceable. In the case at hand, there was a pending challenge against the arbitral award, which was therefore not enforceable." The Cour de cassation therefore seems to admit that, had the award been final, the judge would have had the power to order compliance with the same under penalty.

56
P. Mayer, 'Imperium de l'arbitre et mesures provisoires', Etudes de procédure et d'arbitrage en l'honneur de Jean-François Poudret (Lausanne, 1999) p. 441.

57
Ibid., at p. 443.

58
Poudret and Besson, supra note 43.

59
J. Robert, Arbitrage, droit interne droit international, 5th edn. (1983) p. 175: "il faut admettre que l'arbitre ne dispose pas d'un semblable moyen de coercition. Il est en effet admis que l'astreinte n'a pas seulement un caractère comminatoire mais est constitutive d'une peine privée que le juge trouve dans son imperium le pouvoir de prononcer et liquider. Et l'arbitre dont le pouvoir est strictement contractuel et non public, ne dispose d'aucun imperium."

60
Ch. Jarrosson, 'Réflexions sur l'imperium', Etudes offertes à Pierre Bellet (Paris, Litec, 1991) p. 245.

61
F. De Martino, 'La giurisdizione nel diritto romano', quoted by Jarrosson, supra note 60, at p. 38.

62
Jarrosson, supra note 60, at p. 279.

63
H. Muir-Watt, 'L'exécution du contrat dans un contexte international', in M. Fontaine and G. Viney (eds.), Les sanctions de l'inexécution des obligations contractuelles (Bruylant, 2001) p. 799: "it seems perfectly logical to apply the law of the contract to the remedies. It is such law that defines the binding effects of the contract. To apply, instead of the law which grants its protection to the contractual relationship, a law which would as a matter of principle only admit damages, could be perceived as contrary to the expectations based on the contract."

64
Art. 25, para. 3 of the Swedish Law of March 4, 1999 provides that "arbitrators have no power to issue injunctions under penalties, nor to resort to means of coercion in order to gather evidence".

65
In the absence of a substantial choice of law, new Art. 7.2.4 of the UNIDROIT Principles may allow an arbitral tribunal to apply the same solution if the will of the parties to apply non-national rules is sufficiently clear.

66
In France: Cass. 3ème Civ. December 15, 1993; Cass. 3ème Civ., October 5, 1995; Cass. 3ème Civ. June 26, 1996, Ferry.

67
G. Viney, 'Exécution de l'obligation, faculté de remplacement, et réparation en nature en droit français', in M. Fontaine and G. Viney (eds.), Les sanctions de l'inexécution des obligations contractuelles (Bruylant, 2001) p. 167.

68
P. Wéry, 'L'exécution en nature de l'obligation contractuelle et la réparation en nature du dommage contractuel, Rapport Belge', in M. Fontaine and G. Viney (eds.), Les sanctions de l'inexécution des obligations contractuelles (Bruylant, 2001) p. 205.

69
Art. 888 of the Code of Civil Procedure (Zivilprozessordnung, ZPO).

70
Although "the current view is that specific performance can be ordered … if it is, in the circumstances, the most appropriate remedy". See G. H Treitel, The Law of Contract, 11th edn. (2003) p. 1020. On specific performance in English law, see F. Bellivier and R. Sefton-Green, 'Force obligatoire et execution en nature du contrat en droit français et anglais: bonnes et mauvaises surprises du comparatisme', Le Contrat au début du XXIème siècle, Etudes offertes à J. Ghestin (2001) p. 91. See also the doctrine quoted by T. E. Elder, 'The Case Against Arbitral Awards of Specific Performance in Transnational Commercial Disputes', 13(1) Arbitration International (1997) pp. 8-11.

71
The New York Court of Appeals decided on several occasions that an arbitral tribunal has the power to award specific relief: Staklinski v. Pyramid Elec. Co., 180 NYS 2d 20 (NY App. Div. 1958), aff 'd, 160 NE 2d 78 (NY 1959); Grayson-Robinson Stores, Inc. v. Iris Constr. Corp., 168 NE 2d 377 (NY 1960). In Staklinski, the Court held that, although the contract at stake was one for personal services, New York law admitted specific performance in the circumstances of the case. The Court also found that specific performance did not entail an undue limitation of the debtor's freedom to direct its affairs as it saw fit. Finally, the Court found that the applicable AAA arbitration rules enabled the arbitral tribunal to grant said relief. In Grayson-Robinson Stores, the Court also found that confirmation of a specific performance award did not imply a de novo equity suit. In respect to these decisions, see Elder, supra note 70, at pp. 11-15.

72
E.H. Hondius, 'Les sanctions de l'inéxécution', in M. Fontaine and G. Viney (eds.), Les sanctions de l'inexécution des obligations contractuelles (Bruylant, 2001) p. 848.

73
H. Roland and L. Boyer, Adages du droit français p. 510.

74
Bellivier and Sefton-Green, supra note 70, at p. 20 seq. See also the decision of the New York Court of Appeals in Staklinski, supra note 71, at note 55.

75
Ibid., at p. 42.

76
Elder, supra note 70.

77
Ibid., at p. 29.

78
Ibid., at p. 32.

79
See the decision of the New York Court of Appeals in Grayson-Robinson Stores, supra note 71, where the Court held that the enforcement of an award of specific performance was not "an equity suit but a motion made as of a right to confirm a completely valid arbitration award conforming in all respects to the express conferral of authority on the arbitrators and meeting all statutory requirements for confirmation".

80
Cass. Civ. November 30, 1950, JCP 1951 II, 6089; Cass Civ. February 27, 1953, Bull. Civ. II, 63.

81
Wéry, supra note 68, at p. 232, quoting Cass. January 24, 1924.

82
Bellivier and Sefton-Green, supra note 70, at p. 7.

83
Section 55 of Law No. 607 of September 6, 1986.

84
Judicial penalties are capped at EUR 5900.

85
Arts. 883-898 of the Code of Civil Procedure.

86
Section 48-5(b) of the Arbitration Act 1996.

87
Section 26 of the Arbitration Act 1954.

88
Lévy, supra note 3, at p. 32.

89
Horsmans, supra note 32, at p. 530.

90
Paris, May 24, 1991, Rev. Arb. 1992, 636, note by J. Pellerin.

91
For a decision adopting this approach, see also Paris, October 7, 2004, JDI 2005, 341, note byA. Mourre and P. Pedone.

92
Prof. R.-J. Dupuy as Sole Arbitrator granted specific performance in the context of a nationalization in Texaco Overseas Petroleum Co. and California Asiatic Oil Co. v. Libyan Arab Republic, 17 ILM 1 (1978) § 112; YCA 1979, 177; see J.-F. Lalive, 'Un grand arbitrage pétrolier entre un gouvernement et deux sociétés privées étrangères', JDI (1977) p. 320.

93
BP Exploration Company (Libya) Limited v. Libyan Arab Republic, 52 ILR 297 (1974) p. 354. In Libya American Oil Company (LIAMCO) Limited v. Libyan Arab Republic, the arbitral tribunal held that "it is impossible to compel a State to make restitution, this would constitute in fact an intolerable interference in the internal sovereignty of States" (20 ILM 1 (1981) p. 63). Specific performance was also denied in CMS Gas Transmission Company v. Argentina, ICSID Case No. ARB/01/8, Award, May 12, 2005, § 406.

94
Occidental Petroleum Corporation and Occidental Exploration and Production Company v. The Republic of Ecuador, ICSID Case No. ARB/06/11, Decision on Provisional Measures, August 17, 2007.

95
Chorzow Factory (Germany v. Poland) case, PCIJ, Series A, No. 17, 1928.

96
Occidental Petroleum Corporation, supra note 94, at § 73.

97
As rightly noted by Broches, the reference in Art. 54 of the Washington Convention to "pecuniary obligations" is not to be construed as an exclusion of other remedies. A. Broches, 'Awards Rendered Pursuant to the ICSID Convention; Binding Force, Finality, Recognition, Enforcement, Execution', 2 ICSID Rev.-FILJ (1987) pp. 287, 302. Yet, ICSID awards have almost always been for pecuniary compensation.

98
City Oriente Ltd v. Petroecuador and The Republic of Ecuador, ISCID Case No. ARB/06/21, Decision on Provisional Measures.