International Construction Law Review
Damages In International Arbitration1
Professor Doug Jones AO2
Arbitrator
INTRODUCTION
Damages can be a fraught issue for arbitral tribunals, the members of which are often learned in the law but may not be as learned in things mathematical or economical. Regrettably, it is not uncommon for counsel or tribunal members to recount experiences during evidentiary hearings, in which the evidence of damages experts was “shoe-horned” towards the end of the hearing. This creates the impression that the tribunal members were not as familiar with their reports as they would have liked and may well mean that, after the evidentiary hearing and during award preparation, further enquires have had to be made by the arbitral tribunal regarding the expert evidence when it could (and should) have been explored at or even before the evidentiary hearing.
The thesis of this article is that proactive attempts should be made by tribunals to ensure that issues of damages are dealt with in an informed and appropriately detailed way. In undertaking this inquiry, tribunal members should: (i) examine the alternative approaches to the assessment of damages and their application to construction law disputes; and (ii) tactfully engage with experts, particularly party-appointed experts. A tribunal’s proactive management of party-appointed experts, including those who are not versed in what may be considered best practice for international arbitration, will pay considerable dividends for the economy, precision and impartiality of the arbitral process.3
This article is divided into two parts:
- Part I: Approaches to Assessing Damages discusses the various resources available to assist with familiarisation with the alternative approaches to the assessment of damages in international arbitration and construction law disputes.
- Part II: An Approach to Engagement highlights the differences between party-appointed experts and tribunal-appointed experts and suggests engagement processes with party-appointed experts. For there to be real value to both parties and the arbitral
1 This article is adapted from a paper delivered by the author at GAR Live: Damages in London on 30 January 2025.
2 International arbitrator and International Judge of the Singapore International Commercial Court: www.dougjones.info. The author thanks Zhong Guan, Associate, and Alice Shan, Legal Assistant at Sydney Arbitration Chambers, for their assistance in the preparation of this article.
3 Professor Jones AO, D, “Jones Shares Procedural Approaches After GAR-LCIA Roundtable”, Global Arbitration Review (Blog Post, 6 December 2024).
Pt 2] Damages in International Arbitration
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