Abstract

Mitigation of Damages

A Selection of Recent ICC Awards

Juan Felipe Merizalde

English

The principle that a claimant must mitigate the loss that flows from respondent’s breach has been consistently applied in ICC cases, either as a rule directly established in the applicable law, or as a consequence of general principles of law such as the good faith obligation, contributory negligence and causation. This article summarises six recent awards and identifies three issues that should be considered by parties and arbitral tribunals dealing with a defence based on mitigation of damages: a reasonableness test, the timing for claimant to mitigate its losses, and the issue of a limited liability clause in the applicable contract.