BeyondFull Compensation

Helmut Ortner

217 June 2011 WilmerHale

Towards Full Compensation

The guiding principle for quantification Damages = damage

Inching towards perfection Prof. Marboe

Heuristics Developed in arbitration practice Dr. Jurcewicz

317 June 2011 WilmerHale

Beyond Full Compensation

Open and explicit deviation

Reduction Clauses downwards deviation

Punitive Damages upwards deviation

417 June 2011 WilmerHale

Beyond Full Compensation

Punitive Damages I

Shifting focus of discussion 1980s/1990s: focus on the US Lately: focus on Europe

Why relevant for European practitioners?

517 June 2011 WilmerHale

Beyond Full Compensation

Punitive Damages II

Authority of tribunal to award PD Insurmountable obstacles? (Garrity) Trend: Combination of factors Unwanted automatism? (Mastrobuono)

617 June 2011 WilmerHale

Beyond Full Compensation

Punitive Damages III

Decision to use the power to award PD Endangering (usefulness of) award Public Policy Taking a closer look Result differentiated approach

717 June 2011 WilmerHale

Beyond Full Compensation

Punitive Damages IV

Practical suggestions For the tribunal

Avoid Mastrobuono-Fallacy

Clear separation

Supporting / alternative reasoning

817 June 2011 WilmerHale

Beyond Full Compensation

Punitive Damages IV

Practical suggestions For the parties

Plain contractual language

Differentiated enforcement request

Differentiated approach to enforcement

Helmut Ortner

WilmerHale49 Park LaneLondon, W1K 1PSUnited Kingdom

www.wilmerhale.com+44 (0)20 7872 1681 (t)+44 (0)20 7839 3537 (f)