Originally from World Arbitration And Mediation Review (WAMR)

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LUNCHEON ADDRESS:

LESS IS MORE, MORE OR LESS
Lucy Reed*

I. INTRODUCTION
At the outset, I wish to thank the ITA Workshop Co-Chairs,
Andrea Bjorkland, Stephen Jagusch and Claudia Salomon, and the
sponsors of the luncheon. Congratulations to all participants on an
outstanding workshop on damages.
I was most pleased to be invited to speak because, as counsel and
arbitrator in complex international arbitrations, the whole issue of
damages – theory and quantum – is very much on my mind. It is a
topic that is critical and, unfortunately, too often short-changed.
Indeed, when Andrea kindly asked me to give this luncheon
address, three images flashed unbidden through my mind:
(1) September 1974: My first day of my first year of law
school at the University of Chicago, in Professor
Richard Epstein’s Contracts class. Two observations by
Professor Epstein remain vivid. First, he observed that
lawyers are most comfortable when discussing contract
formation and breach, but they tend to lose steam at the
stage most critical for clients – damages. Second, he
predicted that nonetheless we would not get around to
taking his Remedies class. True and true.
(2) Fast forward to 2007 or so: A conversation over drinks
with a pre-eminent arbitrator (not present today) about
the quantity and quantum of reasoning in ICSID
awards. He observed that unless and until investors and
States insist on appointing arbitrators who are PhD
economists and CPAs and mathematicians, nothing will
change, and no arbitrators will annul other arbitrators’
awards for lack of adequate quantum reasoning.
Probably true, though I am not that stark and cynical.