10 Damages in International Arbitration
Edited By: James H. Carter, John Fellas
- Jurisdiction — Compensation — Damages — Arbitrators — Costs and expenses
This chapter addresses the implications of the substantive law of the State of New York for the proof and calculation of damages. In international commercial arbitration, the category of damages, as well as the nature of proof required, is determined by the agreement of the parties. Absent such an agreement, tribunals will be guided by the substantive law of the arbitration. And generally, for damages to be recoverable, an aggrieved party must prove that the opposing party’s conduct directly and proximately caused the claimed damages. Although an in-depth analysis of theories and standards of proof for establishing causation is beyond the scope of this chapter, the requirement that a party prove, with a reasonable degree of certainty, damages proximately caused by a respondent’s actions explains New York law’s general skepticism about anticipated lost profits for a prospective business opportunity as a class of damages.