View the recording here.
The issue of damages in investor-state dispute settlement (ISDS) is gaining increased attention. Arbitrators are devoting more space to the topic in their awards and counsel and experts in their submissions, States are reflecting on this in their policy- and treaty-making capacities, and academics and other commentators are increasingly scrutinizing existing approaches and suggesting new ones. One set of questions that arises with respect to damages relates to the legal relevance, if any, of an award or series of awards being “crippling” for a State. At present, the issue of whether an award or awards affect the capacity of States to deliver basic public goods does not seem to easily fit within the substantive and procedural contours of damages assessment and implementation in ISDS. CCSI hosted a lively discussion of that approach — how we’ve arrived at it, and whether a different way forward is desirable and feasible.
The session built on Martins Paparinskis’s paper, A Case Against Crippling Compensation in International Law of State Responsibility. We heard from a series of academics and practitioners on the paper and the questions it inspires, and opened the floor for discussion with attendees.
Christina Beharry, Foley Hoag LLP
Jonathan Bonnitcha, University of New South Wales
John Daley, US Department of State
Viren Mascarenhas, King & Spalding
Rodrigo Monardes, Ministry of Foreign Affairs, Chile
Martins Paparinskis, University College London
Lise Johnson, CCSI (Moderator)