Gilles Cuniberti

Advance Relief Under the Cape Town Convention

This article analyses the nature of the relief pending final determination that is provided for by Article 13 of the Cape Town Convention. It contends that the language and legislative history of Article 13 do not allow a final conclusion on the nature of Article 13 relief to be reached. Article 13 can be characterised as a hybrid between a final remedies provision and one that addresses interim relief. It does not fit with any of the remedies commonly found in national legal systems. It is argued that the lack of clarity of the purpose of the provision not only makes it difficult to give any guidance to future Convention interpreters, but also reduces its usefulness, as transactional lawyers and their clients will want to know what they are actually establishing through an Article 13 clause. The article therefore proposes two models for Article 13: interim relief and an advance enforcement remedy. The rationale for each is a particular goal that parties might want to pursue when availing themselves of the possibility of stipulating for Article 13 remedies in their contract.

The Law Governing the Performance of Arbitral Awards

In most cases, awards are either paid in a way which satisfies the award creditor, or not paid at all. When awards are paid to the satisfaction of all involved parties, no issue arises. When the award debtor does not want to pay, the award creditor may seek enforcement of the award. There are, however, instances where performance may raise issues irrespective of enforcement. First, the award debtor may wish to perform the award in a way which does not satisfy the award creditor. Second, the debtor may argue that an event has occurred that entitles him not to pay the award. In these cases, it is necessary to determine which rules govern, but there are no enforcement proceedings involved, or at least not necessarily. This paper explores the choice of law issues raised by the performance of arbitral awards. It identifies the different approaches to the problem depending on the various conceptions of international arbitration and how the issues under scrutiny are traditionally characterized for choice of law purposes. It then surveys the different solutions adopted by courts.