Under what circumstances is, or should be, specific performance available to parties to a contract between a State and a foreign national?

The answer to that question is speculative, since the law directly in point is sparse. Nevertheless, resort to municipal law sources and analogies, and consideration of such relevant international law as there is, suggests that circumstances exist, or should exist, in which the remedy for breach of a contract between a State and a foreign national is specific performance. Moreover, where the contract in dispute provides for arbitration of a quasi-international character, the case for specific performance may be strengthened. Specific performance, it will be suggested, is a remedy to be applied selectively in the application of international contracts as in other contracts. But it has, or should have, its place – a place of importance.

The Governing Law

The question of the remedies which the law affords for violation of a contract depends on what law governs the contract and upon the terms of the contract itself. Putting aside a contractual indication of remedies, we are brought to the question of what law governs contracts between States and foreign nationals. To that question there is no ready answer. The answer plainly depends upon the contract in question. Such a contract may be, and generally is, governed by the municipal law of the contracting State. It may, however, be governed by the municipal law of another State, notably that of the nationality of the foreign contractor. It may, otherwise, be governed by the shared principles of law of more than one State.