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Practising VirtueInside International Arbitration$
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David D. Caron, Stephan W. Schill, Abby Cohen Smutny, and Epaminontas E. Triantafilou

Print publication date: 2015

Print ISBN-13: 9780198739807

Published to Oxford Scholarship Online: January 2016

DOI: 10.1093/acprof:oso/9780198739807.001.0001

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Future Damages in Investment Arbitration— a Tribunal with a Crystal Ball?

Future Damages in Investment Arbitration— a Tribunal with a Crystal Ball?

(p.642) 39 Future Damages in Investment Arbitration— a Tribunal with a Crystal Ball?
Practising Virtue

Hans van Houtte

Bridie McAsey

Oxford University Press

This chapter examines the appropriate measure of compensation for damages based on future income, whether from earnings of an enterprise or guaranteed tariffs under an investment contract. The analysis encompasses not only the ‘reasonable certainty’ standard employed frequently by tribunals requested to determine damages based on future income, but also innovative suggestions for tackling scenarios where the evidence may not support reasonable certainty. Such suggestions include postponing the damages phase until sufficient evidence emerges; issuing an award subject to conditions allowing its future amendment in respect of the amount of damages; or issuing a partial award, with the final award to follow once damages can be appropriately determined.

Keywords:   compensation, international treaties, future damages, investment treaty arbitration, future income, reasonable certainty

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