On Damages For Breach Of International Commercial Arbitration Agreement

When one party breaches the international commercial arbitration agreement and sues in the court in another country,it will bring economical loss to the other party.However,current ways for relief,including objections to jurisdiction provided in New York Convention and anti-suit injunctions in common law countries,cannot compensate the loss incurred by the injured party.Therefore,providing damages should become a proper remedy for breach of arbitration agreement and be included in the remedial system,no matter for the purpose of fairness and justice or to uphold the effect of arbitration agreement and promote the development of international commercial arbitration.Arbitration agreement is one kind of contract in nature,with independent primary performable duty.The breach of arbitration agreement is nonfulfilment of obligation to arbitrate,substantially a kind of breach of contract that can give right to damages.Thus the right to claim for damages for breach of arbitration agreement is same to that of ordinary contract.In circumstances where meeting the requirements of certain countries for malicious action,the breach of arbitration also can give right to damages for tort or such right according to procedural laws.Arbitral tribunal has exclusive jurisdiction for claims of damages for breach of arbitration agreement and the applicable law should be the proper law of arbitration agreement itself.In the meantime,in order to give adequate compensation to the injured party,the principle of complete compensation must be applied.However,it is also necessary to give some limits to the right to damages as well as the scope of it,so as to ensure the execution of the award of damages in other countries,making the remedy contributes maximum effectiveness while reducing its negative influence for international comity.As the remedy goes more prevalent,China should also admit the right to damages for breach of arbitration agreement in order to better protect the interests of Chinese parties and promote our competitive power in international commercial arbitration.