Once again, welcome to a new Dossier of the Institute.

In most cases, before state courts or arbitral tribunals, the bottom line is damages.

How to assess them? Practice shows that often, too often, damages are globally assessed simply because, in most cases, it is quite difficult to arrive at a fully justified estimate. This is not only true in very complex construction cases, but also in the simplest procedures. Whether or not their origin is contractual, damages are supposed to compensate the victim. What a delicate task!

Even though, from a strictly legal point of view, damages should be calculated in a cold and abstract way, the judge, be he state or arbitrator, will take human and behavioural aspects into consideration. How to measure good and bad faith? In the majority of situations, the assessment is based on a personal approach. This is good, because the true purpose of arbitration is to introduce into the law, not only the stipulations of the contract and the trade usages, as required by Article 17.2 of the ICC Rules, but also the expectations of the parties.

In addition to the recurring topics, it is interesting to see the importance that arbitrators give to the mitigation of damages, which shows that the burden not only rests on the author of the damage, but also on the victim.

In recent times, the notion of direct damage has been extended and, as discussed in this Dossier, now includes punitive damages and the delicate question of the recovery of the costs involved in arbitral proceedings. But which costs? What should they include? Should the winner take all? Should the winner not lose on the costs?

In fact, modern arbitration evolves. It is the duty of the ICC Institute to stay ahead of this evolution, every year, to focus on the combination of classical problems and new questions, and to give the unique answers that arbitration provides.

All questions linked to this very topical issue are discussed by eminent specialists in this Dossier.

Welcome to this fascinating issue. Now, you have to wait for next year's Dossier!

My kind regards to each of you.