It is often said that an arbitral award is worth only as much as the ability to secure its enforceability. To the extent the vast majority of prayers for relief in arbitration are for money damages, an arbitral award granting damages is worth only as much as the ability to obtain payment, voluntary or compulsory, of such damages.
The aim of the new Dossier, prepared by the ICC Institute of World Business Law, is to give the reader a comprehensive overview of the difficulties encountered by arbitrators, governments and international organizations in calculating the amounts of recoverable damages in cases of international arbitration.
When determining recoverable damages, a number of sensitive questions are raised, among them:
- Is there a need for the adoption of a material rule that gives the arbitrator freedom to decide integral compensation of the damage, based on a caseby- case ruling in the matter of how much interest is to be charged?
- When one of the parties is a sovereign state, how can international tribunals provide certainty and ensure transparency in the quantification of damages?
- What are the factors arbitrators and courts in different regions consider in determining how damages should be mitigated?
- In delay and disruption claims, how does one overcome the uncertainty for contractors in formulating their claims, for employers in defending them and for arbitrators and other tribunals in deciding them?
There is a need for both arbitrators and practitioners to understand these issues and to formulate answers to the questions raised. The present volume, written by expert arbitrators and practitioners, many of whom are affiliated with ICC’s renown Court of Arbitration, covers these and other vital issues and proposes practical solutions for resolving them.
Table of Contents
- General characteristics of recoverable damages in international arbitration
- Mitigation of damages
- The expectation model
- The obligation to mitigate damages
- Punitive and exemplary damages in international arbitration
- Damages in investor-state arbitration: applicable law and burden of proof
- Recovery of damages for breach of an obligation of payment
- Means to be made whole: damages in the context of international investment arbitration
- Problems of delay and disruption damages in international construction arbitration
- The parties' cost of arbitration