Law Commons^™

Attorneys' Fees Agonistes: The Implications Of Inconsistency In The Awarding Of Fees And Costs In International Arbitrations, John Y. Gotanda

Working Paper Series

The awarding of arbitration costs and attorneys’ fees in international arbitrations is often arbitrary and unpredictable. In one recent investment arbitration where the tribunal deciding a case under the auspices of the international Centre for the Settlement of Investment Disputes (ICSID) had broad discretion to award costs and fees, the tribunal allocated arbitration costs evenly amongst the claimant and respondent and required each party to bear its own fees and expenses, even though the claimant prevailed. In another case where the claimant was successful on its substantive claim, the ICSID tribunal ordered the respondent to pay the claimant US$6 million …

Interest As Damages, John Y. Gotanda, Thierry J. Sénéchal

Working Paper Series

In this article, we posit that when arbitral tribunals decide international disputes, they typically fail to fully compensate claimants for the loss of the use of their money. This failure occurs because they do not acknowledge that businesses typically invest in opportunities that pose a significantly greater risk than the risk reflected in such commonly used standards as U.S. T-bills and LIBOR rates. Claimants also must share the blame when they do not set out a well-constructed claim for interest as damages. However, even when claimants do so, tribunals often award damages at a statutory rate or at rate reflecting …

Using The Unidroit Principles To Fill Gaps In The Cisg, John Y. Gotanda

Working Paper Series

The United Nations Convention on the International Sale of Goods (CISG) sets forth only a basic framework for the recovery of damages, thereby giving a court of tribunal broad authority to determine an aggrieved party’s loss based on circumstances of the particular case. Unfortunately, the lack of specificity has resulted in much litigation, and seemingly conflicting results. To remedy this problem, some have argued that the gaps in the CISG damages provisions should be filled with the UNIDROIT Principles of International Commercial Contracts. In this paper, I argue that the gap-filling rules of CISG preclude the UNIDROIT Principles from being …

Charting Developments Concerning Punitive Damages: Is The Tide Changing?, John Y. Gotanda

Working Paper Series

This essay discusses a number of developments outside of the United States concerning punitive damages, which may ultimately signal a change in the way other countries view American awards of such damages.

To date, courts in many countries have refused to recognize and enforce American punitive damages awards on the ground that they violate the host country’s public policy. In most civil law countries, such as France and Germany, penal damages can only be ordered in criminal proceedings; a civil award of such damages has been viewed as contrary to ordre public. In common law countries, while punitive damages generally …

Damages In Lieu Of Performance Because Of Breach Of Contract, John Y. Gotanda

Working Paper Series

In contract disputes between transnational contracting parties, damages are often awarded to compensate a claimant for loss, injury or detriment resulting from a respondent’s failure to perform the agreement. In fact, damages may be the principal means of substituting for performance or they may complement other remedies, such as recision or specific performance.

Damages for breach of contract typically serve to protect one of three interests of a claimant: (1) performance interest (also known as expectation interest); (2) reliance interest; or (3) restitution interest. The primary goal of damages in most jurisdictions is to fulfil a claimant’s performance interest by …