Damages in International Arbitration under Complex Long-term Contracts, by Herfried Wöss, Adriana San Román Rivera, Pablo T. Spiller, Santiago Dellepiane, edited by Loukas Mistelis

Abstract

Damages in International Arbitration under Complex Long-term Contracts , by Herfried Woss, Adriana San Roman Rivera, Pablo T. Spiller, Santiago Dellepiane, edited by Loukas Mistelis, Oxford International Arbitration Series, 2014. Lamenting the fact that too little attention is paid to damages, Lucy Reed once proposed that parties in arbitration disputes begin with dessert—by hearing damages right after opening arguments—rather than leave them for the end.1 Notwithstanding that refreshing proposal, it remains true that damages are too often given short shrift, resulting in grumbling from all corners of the international arbitration community. Scholars, experts, and practitioners are dissatisfied with the way in which tribunals approach damages or fail to explain how they have reached their conclusions on damages.2 Arbitral tribunals are unhappy with certain party-appointed damages experts. One tribunal, after awarding the largest damages award in the history of international arbitration, observed that the claimants’ expert’s fees were ‘plainly excessive’ and that the claimants’ expert had been of ‘limited assistance to the Tribunal in its determination of Claimants’ damages’.3 Another tribunal, having noted with thanks the assistance of party-appointed damages experts, belied reliance on those experts in its damages analysis.4 More recently, a tribunal turned the tables on party-appointed experts by appointing its own damages expert, whose report the parties were required to address as the final round of a 12-year long investment arbitration dispute.5 The authors of Damages in International Arbitration under Complex Long - t erm Contracts address a number of causes for this current state of discontent. Their over-arching mission is to instruct practitioners and arbitrators on how to deal with uncertainty. According to the authors:This book underlines the fundamental necessity for arbitral tribunal to learn to deal with uncertainty and not to spare any effort to make a learned, fair and well-reasoned estimate of income profits lost, rather than taking a shortcut to reliance interest or ‘splitting the baby’. (11) The authors emphasize that the solution for uncertainty is not to … [↵][1]* Ruth Teitelbaum is a deputy general editor of Arbitration International and a senior associate in the international arbitration group of Freshfields Bruckhaus Deringer US LLP. The views expressed are hers only and do not reflect those of her employer. ruth.teitelbaum{at}freshfields.com [1]: #xref-corresp-1-1