Specific Performance and Contract Adaptation in International Arbitration
Expected late Fall. Pre-order your copy now!
Specific Performance and Contract Adaptation in International Arbitration examines the remedies of specific performance and contract adaptation as applied in international arbitration. Through comprehensive analysis, it seeks to consider legal issues that arbitrators are confronted with when adjudicating claims for either remedy in international proceedings.
This work addresses the remedies of specific performance and contract adaptation separately, while also exploring the important—though often overlooked—connections between them. In order to enhance consistency and predictability in international arbitration, it considers the circumstances in which arbitrators may appropriately apply both remedies together. It proposes guidelines for situations where arbitrators should adopt a broader arbitral mandate to adapt and enforce contracts, particularly in the context of long-term contractual relationships.
As a first step, this work lays out background, explaining, (i) the historical background to this issue, (ii) the parties’ different interests under a contract and (iii) moral and economic views on the different contractual remedies (Chapter 2). It then considers in some detail specific performance (Chapter 3) followed by contract adaptation (Chapter 4). These substantive chapters take the same methodological approach. They start by analysing the source of arbitral tribunals’ power and the criteria under applicable laws that need to be met for tribunals to grant the remedy. They then consider how arbitrators approach the remedy in practice before setting out some commentary on how arbitral tribunals can – and should – approach them. Finally, this work examines the parallels between specific performance and their possible combination (Chapter 5) before concluding (Chapter 6).
Expected late Fall. Pre-order your copy now!
Bibliography
List of Abbreviations
Chapter 1 - Introduction
Chapter 2 - Background
Chapter 3 - Specific Performance
Chapter 4 - Contract Adaptation
Chapter 5 - Specific Performance and Contract Adaptation: Parallels Between the Remedies, their (Liberal) Application and their Combination
Chapter 6 - Conclusions
Dr. Anne Secomb is an Independent Arbitrator working out of Secomb Arbitration (Singapore/Paris). She has some twenty years’ experience in the field of international arbitration, having sat as arbitrator under most major arbitral rules. She is educated in both the civil law and the common law traditions, admitted to the Berlin and New York bars. She is also a former member of the Paris bar.
Anne has been an independent arbitrator for more than a decade. She started developing her practice as an arbitrator after moving to Singapore in 2015. She has sat on cases under the HKIAC, ICC, JCAA, KCAB and SIAC Rules. From April to June 2018, she was also Counsel to the ICC International Court of Arbitration, opening and establishing the Secretariat’s Singapore office. Prior to moving to Singapore, Anne was Secretary to the ICC Commission on Arbitration and ADR in Paris, the ICC’s dispute resolution think tank. In that role, she oversaw taskforces on various topics such as ‘Costs in International Arbitration’, ‘The Use of IT in Arbitration’ and ‘Financial Institutions and International Arbitration’. Before that, Anne was a counsel to the ICC International Court of Arbitration in Paris where she was in charge of the case management team administrating cases dealing mainly with Switzerland, Italy and Austria, overseeing hundreds of cases. Prior to joining the ICC, Anne worked as a lawyer at Salans (now Dentons) in Paris, where she represented parties in numerous administrated as well as ad hoc arbitrations. During that time, she also acted as tribunal secretary in commercial and ICSID matters.
Anne coached the team from Université de Paris I – La Sorbonne for the Willem C. Vis International Commercial Arbitration Moot between 2007 and 2010, and she was a visiting lecturer at Université Aix-Marseille III Université Paul-Cezanne, Université Paris-Panthéon-Assas and ESSEC Business School. She is, inter alia, a member of the ICC Dispute Resolution Bulletin Editorial Board. Anne is trilingual in English, German and Spanish and speaks French fluently.
"Specific Performance and Contract Adaptation in International Arbitration offers an original and thought-provoking examination of two remedies that are traditionally analysed separately. Dr Secomb demonstrates that specific performance and contract adaptation share a common objective: giving effect to the parties’ bargain and preserving their contractual relationship. By bringing these remedies together within the framework of international arbitration, the book challenges the conventional view that arbitration primarily compensates contractual failure.
Particularly compelling is the book’s broader vision of arbitration as a forum capable of not merely resolving disputes, but of preserving commercial relationships. Drawing on comparative law, arbitral practice and transnational principles, it develops a coherent framework for the exercise of arbitral powers in relation to performance and adaptation. The result is an ambitious and valuable contribution to international contract law and arbitration. This book will be of considerable interest to arbitrators, counsel, academics and anyone concerned with the future development of remedies in international arbitration."
Ben Hughes, Arbitration Chambers
“Specific Performance and Contract Adaptation in International Arbitration addresses a question of immediate practical importance: how can international arbitration better protect the parties’ interest in the continued performance of their commercial relationship? Dr Secomb comprehensively considers the point as to whether damages should be regarded as the natural (or inevitable) response to contractual disruption. She presents a thoughtful analysis regarding instances where specific performance and contract adaptation may provide tribunals with tools to preserve the value of the bargain and enable commercial relationships to continue.
The book combines rigorous comparative research with a focus on arbitral practice. Its analysis of the sources of tribunals’ powers, the substantive requirements for granting performance-oriented relief, and the circumstances in which contracts may be adapted provides valuable guidance for practitioners and arbitrators alike. Most importantly, the book offers a constructive framework for reconciling legal principle, commercial common sense and the parties’ legitimate expectations. It is a valuable contribution to international arbitration at a time when increasingly complex and long-term commercial relationships require remedies that go beyond simple monetary compensation.”
Chiann Bao, ArbBoutique
Dr. Anne Secomb is an Independent Arbitrator working out of Secomb Arbitration (Singapore/Paris). She has some twenty years’ experience in the field of international arbitration, having sat as arbitrator under most major arbitral rules. She is educated in both the civil law and the common law traditions, admitted to the Berlin and New York bars. She is also a former member of the Paris bar.
Anne has been an independent arbitrator for more than a decade. She started developing her practice as an arbitrator after moving to Singapore in 2015. She has sat on cases under the HKIAC, ICC, JCAA, KCAB and SIAC Rules. From April to June 2018, she was also Counsel to the ICC International Court of Arbitration, opening and establishing the Secretariat’s Singapore office. Prior to moving to Singapore, Anne was Secretary to the ICC Commission on Arbitration and ADR in Paris, the ICC’s dispute resolution think tank. In that role, she oversaw taskforces on various topics such as ‘Costs in International Arbitration’, ‘The Use of IT in Arbitration’ and ‘Financial Institutions and International Arbitration’. Before that, Anne was a counsel to the ICC International Court of Arbitration in Paris where she was in charge of the case management team administrating cases dealing mainly with Switzerland, Italy and Austria, overseeing hundreds of cases. Prior to joining the ICC, Anne worked as a lawyer at Salans (now Dentons) in Paris, where she represented parties in numerous administrated as well as ad hoc arbitrations. During that time, she also acted as tribunal secretary in commercial and ICSID matters.
Anne coached the team from Université de Paris I – La Sorbonne for the Willem C. Vis International Commercial Arbitration Moot between 2007 and 2010, and she was a visiting lecturer at Université Aix-Marseille III Université Paul-Cezanne, Université Paris-Panthéon-Assas and ESSEC Business School. She is, inter alia, a member of the ICC Dispute Resolution Bulletin Editorial Board. Anne is trilingual in English, German and Spanish and speaks French fluently.
"Specific Performance and Contract Adaptation in International Arbitration offers an original and thought-provoking examination of two remedies that are traditionally analysed separately. Dr Secomb demonstrates that specific performance and contract adaptation share a common objective: giving effect to the parties’ bargain and preserving their contractual relationship. By bringing these remedies together within the framework of international arbitration, the book challenges the conventional view that arbitration primarily compensates contractual failure.
Particularly compelling is the book’s broader vision of arbitration as a forum capable of not merely resolving disputes, but of preserving commercial relationships. Drawing on comparative law, arbitral practice and transnational principles, it develops a coherent framework for the exercise of arbitral powers in relation to performance and adaptation. The result is an ambitious and valuable contribution to international contract law and arbitration. This book will be of considerable interest to arbitrators, counsel, academics and anyone concerned with the future development of remedies in international arbitration."
Ben Hughes, Arbitration Chambers
“Specific Performance and Contract Adaptation in International Arbitration addresses a question of immediate practical importance: how can international arbitration better protect the parties’ interest in the continued performance of their commercial relationship? Dr Secomb comprehensively considers the point as to whether damages should be regarded as the natural (or inevitable) response to contractual disruption. She presents a thoughtful analysis regarding instances where specific performance and contract adaptation may provide tribunals with tools to preserve the value of the bargain and enable commercial relationships to continue.
The book combines rigorous comparative research with a focus on arbitral practice. Its analysis of the sources of tribunals’ powers, the substantive requirements for granting performance-oriented relief, and the circumstances in which contracts may be adapted provides valuable guidance for practitioners and arbitrators alike. Most importantly, the book offers a constructive framework for reconciling legal principle, commercial common sense and the parties’ legitimate expectations. It is a valuable contribution to international arbitration at a time when increasingly complex and long-term commercial relationships require remedies that go beyond simple monetary compensation.”
Chiann Bao, ArbBoutique
Expected late Fall. Pre-order your copy now!
Bibliography
List of Abbreviations
Chapter 1 - Introduction
Chapter 2 - Background
Chapter 3 - Specific Performance
Chapter 4 - Contract Adaptation
Chapter 5 - Specific Performance and Contract Adaptation: Parallels Between the Remedies, their (Liberal) Application and their Combination
Chapter 6 - Conclusions