Quantum (In)Justice: Rethinking the Calculation of Compensation and Damages in ISDS

Abstract

The present article seeks to critically rethink the key issue of how compensation and damages are and should be calculated in the context of investor-State arbitration – the ‘quantum’ question, as is commonly referred to in arbitral practice. We will make three main claims: first that such calculations are premised on a fundamental consensus that presents the work of arbitrators in this area as essentially uncontroversial fact-finding operations and has led to an inflation of awards, second that this consensus is in reality built on a series of myths and unjustifiable assumptions, and third that the realization that this is so should lay the ground for more acceptable calculations.