Awards of Punitive Damages - SAR 2003 - 2

Author(s):

Jessica Jia Fei

Page Count:

18 pages

Media Description:

1 PDF Version from "Stockholm Arbitration Reporter"

Published:

December, 2003

Jurisdictions:

United States

Practice Areas:

Applicable Law,

Arbitral Awards,

Indemnity, Damages, Punitive Damages,

Arbitrators and Arbitral Tribunals,

Authority of the Arbitral Tribunal,

Powers of Arbitrators,

Enforcement of Arbitral Awards,

FAA,

New York Convention

Author Detail:

Jessica Jia Fei, is an associate of Jones Day Beijing Office, and an LL.M. graduate from

Columbia University School of Law, New York, USA. Before joining Jones Day, she had

worked for 8 years at the China International Economic and Trade Arbitration

Commission (CIETAC) in Beijing, China, and the International Centre of Dispute

Resolution of the American Arbitration Association (AAA), New York. This paper

discusses mainly from the American perspective the issue of punitive damages in

international arbitration.

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Stockholm Arbitration Report (SAR)

Preview Page SAR 2003 - 2

TABLE OF CONTENTS

1. THE FUNCTION OF PUNITIVE DAMAGES

2. WHETHER THE ARBITRATORS HAVE THE POWER TO AWARD PUNITIVE DAMAGES?

2.1. Attitudes of U.S. courts towards awards of punitive damages

2.2. Applicable law and the power to award punitive damages

3. SHOULD ARBITRATORS AWARD PUNITIVE DAMAGES?

3.1. Risk of non-enforcement by national courts

3.2. Public policy concern

3.3. Enforceability of punitive damage award

The idea of punitive damages is perhaps one of the major differences in the legal theories of civil law and common law. In civil law countries the concept of punitive damages is scarcely known, whether in breach of contract cases or otherwise, with a limited exception in some countries where there has been a willful intention to harm the claimant, amounting in effect to fraud. Of the common law countries, only in the United States are punitive damages awarded in what are essentially breach of contract cases. The use of civil damages to punish and deter is common in the American system. Punitive damages serve a public policy function, and the award of punitive damages is entrusted to American civil juries on a daily basis.

Table of Contents:

TABLE OF CONTENTS PAGE

1. THE FUNCTION OF PUNITIVE DAMAGES 2. WHETHER THE ARBITRATORS HAVE THE POWER TO AWARD PUNITIVE DAMAGES? 2.1. Attitudes of U.S. courts towards awards of punitive damages 2.2. Applicable law and the power to award punitive damages 3. SHOULD ARBITRATORS AWARD PUNITIVE DAMAGES? 3.1. Risk of non-enforcement by national courts 3.2. Public policy concern 3.3. Enforceability of punitive damage award