The Law Governing the Modality 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.