Liability and Damages in Evolving Disputes in the Americas: Addressing Ongoing Developments and Economic Impact in Arbitration

The panel will discuss issues in complex claims for infrastructure projects, under both investment treaties and contracts, against the backdrop of arbitral jurisprudence and regulatory change in Latin America. The focus will be on liability and damages in evolving disputes. The discussion will be enriched by panel perspectives from both counsel and experts on damages.

Investment treaty arbitration tribunals often recognize the principle that arbitral tribunals are not courts of appeal and thus do not have the authority to review domestic judicial decisions. However, significant issues may arise when there is a mid-dispute shift in domestic jurisprudence.  The panel will discuss in which scenarios such shifts can impact arguments on liability in investment treaty cases.  The goal is to offer insights into how tribunals might navigate these complex situations, and into the interplay between domestic judicial decisions and international arbitration.

In addition, the panel will address how parties and arbitration tribunals handle claims for future damages.  The panel will consider the 21 June 2024 award and the dissenting opinion in the ICSID case South32 Investments Limited v. Colombia (Case No. ARB/20/9).

The panel will then address the complexities of marshalling evidence for appropriate relief in evolving disputes.  Leading forensic experts will outline the main challenges that parties and tribunals face in the assessment and calculation of future damages.  They will offer both technical and economic perspectives from their experience in complex infrastructure disputes.

The final segment of the panel will underscore the practical implications of these discussions for future arbitration cases that may arise from infrastructure projects in the Americas, offering guidance on navigating the complexities of liability determination and future damages calculation.