It is often said that an arbitral award is worth only as much as the ability to secure its enforceability. To the extent the vast majority of prayers for relief in arbitration are for money damages, an arbitral award granting damages is worth only as much as the ability to obtain payment, voluntary or compulsory, of such damages.

In international commercial, construction and investment arbitration, the prospect of cross-border enforcement of damage awards makes this test of "worth" all the more important, and often precarious. It also serves to focus the arbitrator, the counsel and the merchant alike on the practical need for certainty and clarity in achieving monetary satisfaction, and in properly pleading claims for damages in the first place.

Of all of the practical, legal and scientific issues which befall the arbitrator or the counsel, that of pleading, proving and calculating money damages is perhaps the most elemental and most commercially significant. Notwithstanding all other highly significant and thorny issues of procedure, choice of law, taking of evidence, compatibility with public policy under the lex arbitri and lex causae, etc. - it is the bottom-line quest for damages that informs the entire arbitration and the assessment of victory and failure by the parties. Agreements and disagreements on the procedural framework, the applicable substantive law, the means of presenting and proving allegations and enforceability of any award at the seat or elsewhere are all, ultimately, sideshows in comparison with the end result - did the claim for damages prevail and if so, in what amount? Of course, the fact that the end result is so unforgivingly transparent does not make these procedural, substantive and tactical stepping stones along the way any less significant, but it does show them to be means to an end.

The following papers are based upon presentations given at the 25th annual meeting of the ICC Institute of World Business Law in Paris on 28 November 2005. The presenters are well-known and highly experienced practitioners, counsel, arbitrators and academicians from various corners of the world, various legal cultures and thus various overlapping international perspectives. The common mission of the presenters and of these papers was to focus, more than has been the case in perhaps any other comparable symposium in the recent past, on damages per se. Presented here are analyses of the nature of damages, their legal, factual and forensic underpinnings, the problems of contractual and de lege constraints on damages recovery, the differing means of proving money damage claims, and newly developing areas such as damages in investment arbitration.

The range of analysis in the papers which follow is impressive and comprehensive, both from a legal and a commercial perspective. As an appropriate introduction to the subject, the general characteristics of recoverable damages in international arbitration are addressed, including foreseeability as treated in recent awards, treaties, model laws and such supranational instruments as the UNIDROIT Principles and the Vienna Sales Convention/CISG. Following hard upon the question of foreseeability is that of mitigation and the sources in national law and jurisprudence for a duty to seek to limit one's own damages as a precondition to a right to full compensation.

Perhaps no issue of damages has caused such challenges and controversy as that of loss of profit and loss of opportunity, lucrum cessans. Both commercial and investment arbitrations in recent years have had to contend with complex issues of lost profit recovery. Is a party entitled to them? Can they be excluded or limited? How are they to be reliably calculated? Which substantive law or laws should apply to the question of their recoverability and calculation? In particular, the issue of the discounted cash flow method has proven to be a special challenge for arbitrators and practitioners alike, in addition to the ever-present question of just how foreseeable lost profits must be in order to be recoverable. In turn, party attempts to contractually limit or exclude certain kinds of indirect or consequential damages are examined, as well as public policy constraints on such damages and other kinds of indirect damages, including punitive and exemplary damages.

When discussing damage claims, questions of burden of presentation and burden of proof are also never far removed. The following papers include expert approaches, from various perspectives, of burden of proof as a procedural versus a substantive law issue, and possible conflicts in assigning the appropriate burden depending on which substantive law is applied. In this connection, perceived tensions in the requirements for substantiation of damages are also addressed in the comparison between civil law and common law approaches and the stereotypes associated with these approaches.

The final areas of analysis in the papers include interest as a sub-species of damages and acceptable kinds of damages recovery in international investment arbitration. Moratory and compensatory interest continue to be inevitable questions in most international commercial arbitrations, but alas they attract vastly different and not always reconcilable approaches. With regard to investment, the last three to four years have seen unique legal challenges to damages claims in investment disputes related to claims for wasted costs as opposed to those for loss of profit. In addition, the approach to damages for unlawful expropriation has evolved in recent years, complicated by the fact that certain damage claims may be characterized as contract claims, others as treaty claims and still others as mixed. Finally, the papers approach the perenially thorny issues of delay and disruption damages in construction arbitration and costs of arbitration as damages.

With this compendium of intellectually and culturally stimulating legal analysis, a gap in the recent treatment of commercial, construction and investment arbitration proceedings and awards has been addressed and filled. Damages remain not only the most elemental aspect of arbitration, both for the parties and the tribunal, but also, in many respects, the most problematic. They are rooted in fact as well as in specific legal concepts. At the same time, they are also open to variable and shifting trends in forensic accounting, in transnational public policy and in the art of advocacy. Against this background, the papers in this volume provide a welcome and insightful roadmap to the challenges awaiting international arbitration in the area of damages for several years to come.