Advocacy Regarding Damages in International Arbitration - Chapter 26 - The Art of Advocacy in International Arbitration - 2nd Edition
Craig Miles is a Partner in King & Spalding’s International Arbitration Group, residing in the Houston office. His practice focuses on representing foreign investors in disputes with host governments, primarily before the World Bank’s International Centre for Settlement of Investment Disputes (ICSID), and private parties in commercial disputes before the International Chamber of Commerce (ICC), the American Arbitration Association (AAA), and other domestic and international arbitral institutions.
Originally from The Art of Advocacy in International Arbitration - 2nd Edition
“The only goal of trial is to get money for your client.”
— David Ball on Damages xxi (NITA 2005)
David A. Ball, Ph.D, ends the preface of the second edition of his treatise with the above maxim. While his book is geared toward U.S. plaintiffs’ lawyers in personal injury and wrongful death cases, the maxim is undoubtedly true in international arbitrations as well. Barring the relatively rare instance where a claimant seeks non-pecuniary remedies, the claimant’s primary goal is to obtain the highest monetary award possible. Conversely of course, the respondent’s goal, if unable to prevail on liability, is to minimize the damages award. Yet damages often get short shrift in the preparation of an international arbitration. Parties often spend months developing complicated factual details and arcane legal theories, only to wait until relatively late in the game to develop their damages story. This is a mistake. Damages should be foremost in the minds of advocates at every stage of an international arbitration. Whenever possible, prior to even filing a claim, claimant’s counsel should be well advanced in the preparation of his damages evidence, through the early identification of appropriate documents and witnesses to the quick retention of a damages expert or experts. This in turn will inform the approach at each subsequent step in the process, from the selection of arbitrators to closing statement.