In 2015, we undertook a ground-breaking research project into the assessment of damages in international arbitration cases, analysing 95 publically available awards, to look at how tribunals view damages and how that has changed over time. We have recently updated our research considering a further 21 cases in which damages were awarded between January 2015 and June 2017. All cases are entered into our Damages Database, allowing us to quickly examine specific issues and trends with respect to damages across all 116 cases reviewed.
Our 2015 research indicated that there is often a significant gap between experts, a finding which has sparked debate amongst the arbitration community. It showed that treatment of damages varied enormously between cases but that there were encouraging trends over time in the way Tribunals view damages – growing commerciality, evidence of more consistency between awards. The 2017 update to our research shows those trends continue.
There is very welcome evidence, empirical and anecdotal, that Tribunals are being increasingly proactive in navigating the gap between experts to reach an informed decision and are using all the resources available to them. Their tools include setting out a range of assumptions and sensitivities to be adopted by both experts or asking experts to produce a joint model for example. We welcome such measures that make the quantum phase of a hearing more efficient. It’s probably a bit optimistic to suggest our research has driven such progress but we hope that casting some illumination on damages in these cases contributes to the ongoing debate around making Arbitration a more effective dispute resolution process. We sincerely hope to see this progress continuing.
Our full research findings can be found below.