Liability Yes; Damages No

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José Alberro discusses when tribunals in investor-state international arbitrations rule for the claimant but award no damages in this article for Transnational Dispute Management.

Sometimes tribunals in investor-state international arbitrations rule in favor of claimants on the merits yet award no damages. After a contentious process that may last years and cost millions, the claimant gets the consolation that the actions of a sovereign were judged to be in violation of international law but receives no monetary compensation. This raises the question of whether damage is an essential element of the breach of an international obligation.

In this article for Transnational Dispute Management, author José Alberro outlines examples when tribunals have not granted damages, despite finding State responsibility, because the standard of causation to justify awarding damages was not met. While the reasons for this may vary, a close relationship must be established between the actions of the government that breached its international obligations (and only those actions) and the causation of damage. Dr. Alberro argues that damages estimation requires constructing a proper “but for” scenario that complies with causation and burden of proof principles. He also explores variations on “not meeting the standard of causation” by studying several cases where tribunals found respondent States liable but did not award damages.

This article was originally published by Transnational Dispute Management in October 2019.


The views expressed in this article are solely those of the authors, who are responsible for the content, and do not necessarily represent the views of Cornerstone Research.

Liability Yes; Damages No

Author

  • Washington

José Alberro

Senior Advisor