Damages are a topic of central importance in international arbitration, being very often the principal concern of the parties, and an indication of the performance of their counsel. They are also one of the most complex topics. This book addresses the many competing factors that contribute to their nature and amount: while they are compensatory, they may be subject to counterclaims and set-offs, affected by failures to mitigate, or inflated by considerations such as
interest and costs. Specialist evidence is relied on to complete composite calculations, taking into account such evasive factors as the destruction of market value, uncertainty of future revenues,
projected interest rate changes, and lost dividends. The lack of understanding of the underlying considerations, methods such as "splitting the baby", or dogmas such as the misinterpreted "efficient breach of contract", combined with the already high level of burden of proof, can make successful damages claims or properly reasoned awards difficult to achieve. This book provides in-depth analysis of the legal, financial, and economic issues involved in the preparation of
claims and arbitral awards for damages and loss of income, for the breach of complex long-term contracts in international arbitration. The authors address matters such as the but-for method
and the reconstruction of the hypothetical course of events as well as the quantification of damages. It provides a detailed coverage of issues arising when structuring, arbitrating, or making an award on damages, making it a valuable reference for practitioners in the field. It includes a number of leading cases (including commercial and investment arbitrations), focusing on the damages analysis for breach of contract.
Damages are a topic of central importance in international arbitration, being very often the principal concern of the parties, and an indication of the performance of their counsel. They are also one of the most complex topics. This book addresses the many competing factors that contribute to their nature and amount: while they are compensatory, they may be subject to counterclaims and set-offs, affected by failures to mitigate, or inflated by considerations such as
interest and costs. Specialist evidence is relied on to complete composite calculations, taking into account such evasive factors as the destruction of market value, uncertainty of future revenues,
projected interest rate changes, and lost dividends. The lack of understanding of the underlying considerations, methods such as "splitting the baby", or dogmas such as the misinterpreted "efficient breach of contract", combined with the already high level of burden of proof, can make successful damages claims or properly reasoned awards difficult to achieve. This book provides in-depth analysis of the legal, financial, and economic issues involved in the preparation of
claims and arbitral awards for damages and loss of income, for the breach of complex long-term contracts in international arbitration. The authors address matters such as the but-for method
and the reconstruction of the hypothetical course of events as well as the quantification of damages. It provides a detailed coverage of issues arising when structuring, arbitrating, or making an award on damages, making it a valuable reference for practitioners in the field. It includes a number of leading cases (including commercial and investment arbitrations), focusing on the damages analysis for breach of contract.
1: Introduction
2: The Role and Importance of Damages Law for Breach of
Contract
3: The Complex Long-term Contract
4: Damages Claims for Breach of Contract under Comparative and
Transnational Law
5: Structuring, Analysing and Proving a Damages Claim
6: Valuation of Damages
7: Other Claims
8: Conclusions
Herfried Wöss is a founding partner of Wöss & Partners, S.C. and
has over twenty years of experience in prominent law firms, as well
as at the Mexican Ministry of Labour and Social Affairs and the
European Commission. He specializes in investment and commercial
arbitration, with an emphasis on construction disputes, directors'
disputes, and expert proceedings, as well as WTO and NAFTA panels.
He currently manages a multi-million arbitration
portfolio as sole- and co-arbitrator, party counsel and legal
expert. Dr. Wöss also founded the Investment Arbitration Forum
(Mexico). Adriana San Román Rivera, is a partner Wöss & Partners,
S.C., where she has worked for ten
years as an attorney at law and financial analyst, having
previously worked for Obregón, Quintana y Wöss, S.C. and for the
National Bank of Mexico. She has extensive experience in corporate
banking, financial engineering and risk analysis legal-financial
structuring of projects and infrastructure projects legal-financial
strategies in damages claims, mergers & acquisitions and
anti-dumping and subsidy procedures. Adriana was Ford foundation
scholar of the University of
Exeter where she studied for an M.A Finance & Investment. Pablo T.
Spiller is the Jeffrey A. Jacobs Distinguished Professor of
Business and Technology at the Haas School of Business, University
of California, Berkeley; Senior
Consultant at Compass Lexecon; Research Associate at the National
Bureau of Economic Research; and the former President of the
International Society for New Institutional Economics. Prior to
joining Compass Lexecon he was the co-chair of the International
Arbitration Practice Group at LECG. He is Editor-in-Chief of the
Journal of Law, Economics, and Organization, and Associate Editor
of the Journal of Applied Economics, the Regulation Magazine, the
Journal of Comparative Economics. Dr. Spiller
has extensive consulting and expert testimony experience. He has
testified as expert in more than ninety international arbitration
cases. Santiago Dellepiane is a Senior Vice President with
Compass
Lexecon. He has worked extensively as a consultant for utilities,
regulated, and non-regulated businesses. His work involves economic
analysis, valuation, business advisory, damages assessment and
intellectual property issues. Mr. Dellepiane has testified on
valuation and damages issues. For over fourteen years he has worked
on a large variety of economic, valuation, and business consulting
engagements for clients in several countries and in sectors
including infrastructure, energy, consumer
products, media and hospitality franchises, and has been a project
manager working with counsel on treaty and commercial arbitrations
under ICSID, ICC and other venues, U.S. litigation proceedings,
and
Canadian Court proceedings. Mr. Dellepiane was previously a
Principal with LECG, LLC and General Manager of its International
Arbitration Practice Group, where he was responsible for the
management of the practice.
Damages in International Arbitration under Complex Long-Term
Contracts is a marked contribution to the current paucity of
scholarship on economic damages in international arbitration ...
Written with the specialized practitioner as audience in mind, the
books utility is reinforced by the legal, economic, and financial
experience of its four authors
*A. Devin Bray, The Journal of World Investment & Trade (2016)*
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