A Fair (?) Quantification of Damages in Investor-State Arbitration Proceedings: Reflections from the UNCITRAL Working Group III ISDS Reform Process

Abstract

This paper considers the proposals advanced by some States in the context of the ISDS reform process at UNCITRAL’s Working Group III to curb a perceived tendency towards (too) “high”awards on damagesin investment arbitration proceedings and “inconsistent”approaches to valuation methodologies. Based on analysis of the arguments brought forward in that discussion, it is argued that while clear procedural guidelines on the application of the valuation methodologies used by arbitrators would be a commendable outcome of the reform process, other proposals aimed at capping damages based on equitable considerations or contextual factors, including the financial capacity of the host State, pose more questions and may be more properly addressed in other venues or through existing tools.