Upon a finding of liability, tribunals must make a determination with respect to damages. Claims related to events that have occurred in the past or that consist of a sum certain are straightforward and simple to calculate. Damages resulting from a breach of contract with benefits reaching into the future, or those that would have occurred in a hypothetical world, however, often include elements of uncertainty in their measurement. Such claims for damages may be challenging for claimants to establish and for tribunals to evaluate.
The CPR Protocol on Determining Damages in Arbitration (the “Protocol”) states that “[i]f a tribunal determines that damages have been incurred, it should award them, even if they are difficult to establish with precision." Indeed, the Protocol is consistent with the findings of courts and arbitral panels globally. Generally, an award is not precluded simply because a damages claim may be difficult to ascertain.