Remedies in Investment Arbitration: The Good, The Bad, The Ugly

CPR Institute's Investment Disputes Subcommittee is holding a Panel as part of Washington Arbitration Week, titled Remedies in Investment Arbitration: The Good, the Bad the Ugly. The event will take place on December 5th, from 4:00 PM EST to 5:15 PM EST. 

This is a hybrid event, to be held both over Zoom and in-person at the Washington, D.C. office of Freshfields, located at 700 13th St NW, Washington, DC 20005.

Registration for this event is required. Registration closes on Wednesday, December 4.

Register here for the virtual panel.

Register here for the in-person panel.

1.0 NY CLE credit is pending in Professional Practice. Please see below for full CLE details.

This event will include a panel on the topic of remedies and enforcement, followed by a networking cocktail. 

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CPR Opening Remarks: Knar Nahikian, CPR Institute

Moderator: Caroline Richard, Partner, Freshfields 

Panelists:

• Mark Kantor, Independent Arbitrator
• Carla Chavich, Compass Lexecon
• Karthik Nagarajan, Kimberly-Clark
• Chris Polson, PwC

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In investment arbitration, damages are the primary remedy. However, they are often discussed on the last day of the hearing, typically in a rushed manner. This panel will examine the implications of addressing damages at this late stage and whether this hurried approach is justified, particularly in light of South32 v. Colombia, where the tribunal prioritized evidence regarding damages first and then structured the proceeding around it.  

The panel will also analyze the majority decision to award future damages in South32 v. Colombia. While characterized as “exceptional, [but] not unique,” this decision has sparked considerable debate. Professor Andrés Jana Linetzky’s dissent criticized this approach, arguing that the future damages are uncertain and inconsistent with the terms of the bilateral investment treaty. The panel will explore the implications of such decisions and their broader impact on investment arbitration practices.  

Moreover, assessing interest is also a vital component in determining fair compensation, but it presents significant complexities. The Chorzów Factory case and the Draft Articles on State Responsibility highlight the importance of achieving full compensation, yet practical challenges remain. Key considerations include choosing suitable interest rates—such as LIBOR versus government bond rates—establishing the starting date for interest accrual and deciding whether to apply compounding. This panel will also explore the different types of interest used in damage calculations and the intricacies associated with their application.

If you have any questions about registration or attendance, please contact Micah Seigel at mseigel@cpradr.org.

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CLE will be provided by Freshfields.

CLE Credit Info:

California Law 1.5 General (participatory)
New York Law 1.5 PP – Transitional and Non-transitional

 - CA CLE: Freshfields Bruckhaus Deringer US LLP has been certified by the State Bar of California as an approved provider of MCLE.

- NY CLE: Freshfields Bruckhaus Deringer US LLP has been certified by the New York State Continuing Legal Education Board as an Accredited Provider of Continuing Legal Education in the State of New York. This continuing legal education course has been approved in accordance with the requirements of the New York State CLE Rules and Regulations for credits as indicated above.