Does the law impose limits on the available remedies? Are some remedies not enforceable by the local courts?

International Arbitration

Austria Small Flag Austria

In this respect, Austrian law does not distinguish between proceedings between arbitral tribunals and domestic courts. Hence, all remedies available before the latter – i.e. declaratory relief, performance claims (action or omission) or claims to amending a legal relationship – are available before arbitral tribunals. Consequently, the available remedies are also enforceable, just as if they were granted by domestic courts.

Romania Small Flag Romania

There are no statutory provisions in the CCP regulating the remedies that a tribunal can award. However, it is established that arbitrators have wide discretion as to the type of final remedies they can order. Arbitrators can:

  • Order a party to pay damages;
  • Issue injunctions (ordering a party to do something or preventing a party from doing something);
  • Make a declaration as to whether a party is liable.

There are no rules limiting the type of interest that can be awarded by an arbitral tribunal. Arbitrators can award compound interest.

There are also no specific restrictions on the type of damages that can be awarded. French law allows for the full compensation of damages. Damages for emotional and psychological distress suffered and lost profits can be awarded.

It is unclear whether an award of punitive damages would be problematic. While such damages are never awarded in civil litigation, the French courts have held that punitive damages are not necessarily contrary to French international public policy. However, such damages must not be disproportionate to the harm suffered (see Court of Cassation, First Civil Chamber, 1 December 2010, No. 09-13.303).

France Small Flag France

Besides the respect for the mandatory laws there are no any other limits, mostly when arbitrators decide ex aequo et bono or taking in due consideration the balance of interests at hand. State courts can enforce all arbitration awards.

Portugal Small Flag Portugal

There is no specific provision in the arbitration law as to the type of remedies available to the parties. Therefore, there is no limitation on the type of remedies that an arbitral tribunal may award, other than the limitation imposed by the parties’ claims in the sense that the arbitral tribunal can only grant what was requested, regardless of the nature of the claim.

However, to a large extent the admissibility of the remedies depends on the substantive and procedural law applicable to the dispute. For example, if the arbitral tribunal applies Romanian procedural law, it may consider a request for a declaratory judgment to be inadmissible to the extent that the claimant has the option to bring a claim to enforce its rights.

As for the enforceability of the remedies, again the arbitration law does not impose any limitations, the only remedies not enforceable being therefore the ones not enforceable by their nature (for example declaratory judgements).

Sweden Small Flag Sweden

The limitations with respect to available remedies to a far extent go hand in hand with the issue of arbitrability. Hence, the remedy cannot include non-arbitrable measures, such as penalties or fines. Apart from these limitations, the tribunal is free to award any remedy, however, within the scope of the parties’ pleadings.

Enforcement of an award can be refused on basis of the defenses available under the New York Convention. In addition, enforcement will only be accepted with respect to specific obligations imposed on a party, e.g. payment, restitution, etc. Declaratory awards cannot be enforced.

New Zealand Small Flag New Zealand

No. An arbitral tribunal may award any remedy or relief that the High Court could have awarded if the dispute had been the subject of civil proceedings (section 12(1)(a) of the Act).

Switzerland Small Flag Switzerland

The remedies available to the arbitral tribunal are determined by the law applicable to the substance. As a consequence, also remedies not know to Swiss law may be ordered by the arbitral tribunal. However, the enforcement in Switzerland of an award ordering relief that would contradict public policy can be contested in Switzerland. According to the case law of the Swiss Federal Tribunal, public policy encompasses all fundamental and recognised values that should form the basis of any legal system according to the view prevailing in Switzerland. In practice, there is only a very remote success rate to object against the enforceability of an award on grounds of public policy.

UAE Small Flag UAE

There are no express limitations on the types of relief that a tribunal can issue. However, a tribunal cannot award criminal or public remedies. UAE law recognises the concepts of direct damages, loss of profits, loss of opportunity, consequential damages, interest and moral damages. Nevertheless, there may be practical limitations on enforcement. For example, injunctive relief (permanent or temporary) may be difficult to enforce as such relief is unknown to UAE courts.

Under the DIFC Arbitration Law and the ADGM Regulations, arbitrators enjoy the power to order a broad range of relief, including specific performance.

Malaysia Small Flag Malaysia

In principle, the remedial powers of arbitrators are matters to be agreed upon by parties. Parties may consensually specify the types of monetary and non-monetary relief that can be granted by their arbitrators.

There are no limits on the monetary relief which may be awarded by an arbitrator save where parties otherwise agree. In respect of non-monetary relief, it is submitted that arbitrators may award injunctive relief, such as injunctions, specific performance, and declarations, even where an express agreement conferring such powers is absent. Such practices have been upheld in other UNCITRAL Model Law jurisdictions, findings to which Malaysian courts would pay regard.

United States Small Flag United States

Generally, arbitrators may issue any remedy consistent with the parties’ agreement. Unless there is express contractual intent to the contrary, a tribunal may award: equitable relief, such as injunctions and specific performance; punitive damages; pre- and post-award interest; and attorneys’ fees and arbitration costs.

Singapore Small Flag Singapore

Unless otherwise agreed by the parties, the arbitral tribunal may award any remedy or relief that could have been ordered by the court if the dispute had been the subject of civil proceedings in that court. IAA, Section 12(5). The arbitral tribunal is therefore given far-reaching discretion to grant remedies it deems appropriate.

Brazil Small Flag Brazil

The Law nº 9.307/96 does not impose limits on measures that may be granted by the arbitral award. However, obviously, arbitration awards cannot determine compliance of measures legally impossible to be fulfilled or of illegal measures, and neither can they be rendered outside the limits set by the arbitration convention, so that the local courts cannot enforceable these arbitral awards.

Canada Small Flag Canada

Unless otherwise agreed, generally an international arbitral tribunal may order any relief that a court may order. For domestic tribunals, some provinces and territories do not provide for jurisdiction to order equitable relief. Generally parties may agree that a tribunal may grant remedies that may not be available from a court.

Panama Small Flag Panama

The Panama Arbitration Law is silent as to the limits on the available remedies, provided that such remedies do not violate Panamanian public policy (for domestic awards) or international public policy (for awards issued outside of Panama or for awards issued in Panama in international arbitration proceedings).

Spain Small Flag Spain

The arbitration law does not impose any particular limit on the remedies. Local courts will not enforce remedies contrary to Spanish Public Policy (e.g. depriving any party of all of its assets and income below the minimum wages approved by law each year).

Turkey Small Flag Turkey

The arbitral tribunal cannot grant remedies on the matters which are not requested by the parties and not in the compliance with the arbitration agreement. Additionally, punitive damages are not recognised under Turkish law and any arbitral award which includes punitive damages will be against the public order and will be result in the cancellation of the award.

Germany Small Flag Germany

Generally under German law, arbitral tribunals have the competence to render an award granting declaratory relief, affecting a legal relationship and declaratory actions. This corresponds to the competences of judges of public courts under German law. Following the principle of party autonomy, the parties may determine further competences of the arbitral tribunal in their arbitration agreement.

Italy Small Flag Italy

The Italian Civil Procedural Code does not contain provisions regarding the type of remedies available to the parties in arbitration. The only limitation is that arbitral tribunals cannot issue orders for seizure of property or other interim measures, unless expressly provided for by law (see response to question 21 above).

In general, arbitrators can render awards that are condemnatory (order a payment or an action), declaratory (award setting out the rights of the parties) and constitutive (setting out the effects of a given legal situation on the relationship of the parties).

United Kingdom Small Flag United Kingdom

The parties may agree whatever remedy is available to the tribunal. In the absence of the same the tribunal may (section 48) (a) make a declaration, (b) order the payment of a sum of money or (c) order a party to do or refrain from doing something.

Remedies may not be enforceable in certain jurisdictions, subject to the local laws of that jurisdiction.

Ireland Small Flag Ireland

An arbitrator can generally grant any remedy or relief within the scope of the agreement of the parties which is permissible under the substantive law applicable to the dispute.

The law applicable to the dispute will dictate the remedies that may be sought in arbitration. With this in mind, an arbitrator can order both common law and equitable remedies such as damages and specific performance (except in relation to land or any interest in land).

If the arbitrator stipulates a remedy which goes beyond what is necessary to adjudicate on the issues referred to arbitration, the award will be deemed unenforceable if the offending part cannot be severed. An award will also be unenforceable if it seeks to regulate the future conduct of the parties in respect of future disputes.

Poland Small Flag Poland

The arbitral tribunal is free to grant any kind of remedy or relief available under substantive law, provided it does not violate public policy. For example, it is generally believed that punitive damages are contrary to Polish public policy.

Cyprus Small Flag Cyprus

ICA Law does not limit the types of remedies an arbitral tribunal can award, save where the existence or dissolution of a Cyprus Company or the rectification of any of its registers is involved or where a remedy would affect the registration of rights over immovable property situated in Cyprus or where other public policy reasons dictate that the relevant remedy can only be granted by the Court.

Updated: October 17, 2017