Abstract
People often treat awards as the focal point of international commercial arbitration, but awards are not the focal point; remedies are. Yet remedies remain an undertheorized topic in the arena of international commercial arbitration. The whole topic of remedies is neglected; there is almost no quantitative data on the remedies requested or awarded in international commercial arbitration. Likewise, almost no standard works devote significant qualitative analysis to remedies.
Remedies are also perplexing because opinions on the sources and limits of a tribunal’s remedial powers are literally scattered to the four cardinal directions, with observers approaching remedial powers from the perspectives of substantive norms, procedural norms, party autonomy, and potential barriers to enforcement. Further, remedies are unpredictable because tribunals enjoy broad discretion in selecting remedies, but rarely discuss the factors that govern the exercise of discretion.
The fact that remedies are neglected, perplexing, and unpredictable does not serve the parties who engage in international arbitration. This Article sheds much needed light on the problem and offers solutions. To illustrate the problem, this Article surveys the existing literature on remedies in international commercial arbitration. In so doing, it emphasizes the limited body of quantitative and qualitative information.
Turning to solutions, this Article breaks new ground by evaluating each of the four approaches to remedial powers in terms of starting points, caveats, and identification of the starting point that requires the least significant caveats. It also seeks to increase predictability by exploring the ways in which the structural characteristics of the arbitral process should influence the tribunal’s exercise of discretion in selecting appropriate remedies.
The Article concludes that the applicable substantive law and the parties’ prayers for relief are the two most important factors affecting the selection of remedies in international commercial arbitration. This perspective envisages that arbitrators will perform a narrower role than is often contemplated. But it also a perspective that increases predictability and channels the exercise of discretion on the single most important topic in international commercial arbitration.
Recommended Citation
Charles H. Brower II,
Neglected, Perplexing, Unpredictable: Remedies in International Commercial Arbitration,
102 Neb. L. Rev. 485
(2023)
Available at: https://digitalcommons.unl.edu/nlr/vol102/iss3/2