- 15-Oct-2025
- public international law
Punitive damages are awarded to punish a defendant for egregious conduct and deter others from similar behavior. In traditional litigation, punitive damages are more common in certain jurisdictions, especially in tort cases. However, in arbitration, the ability of arbitrators to award punitive damages is limited and largely depends on the nature of the dispute, the parties’ agreement, and the governing legal framework or arbitration rules. Understanding the circumstances in which arbitrators can award punitive damages is crucial for both parties in arbitration proceedings.
In most arbitration cases, the primary role of the arbitrator is to compensate the injured party for actual damages (compensatory damages) or to restore them to the position they would have been in had the contract been performed (restitutionary damages).
Punitive damages are generally not the focus in arbitration. They are meant to punish bad conduct and deter future violations, which is more aligned with court-based litigation (particularly in jurisdictions like the U.S.).
Arbitration awards are generally governed by the parties’ agreement, the arbitration rules, and the applicable law. In many cases, these frameworks restrict the ability of arbitrators to award punitive damages because such awards are often seen as inconsistent with the principles of arbitration, which aim to resolve disputes based on fairness, efficiency, and neutrality.
In many jurisdictions, public policy limits the availability of punitive damages in arbitration. Some countries, like the U.S., allow punitive damages in certain cases, particularly where the underlying dispute involves tortious conduct. However, many other jurisdictions, including those following civil law traditions, do not recognize punitive damages as a remedy in arbitration.
Different arbitration institutions have their own guidelines regarding the awarding of punitive damages. For example:
In some cases, where there is evidence of fraud, malicious intent, or gross misconduct, arbitral tribunals may award a form of damages that is similar to punitive damages. However, this is rare and depends on the legal framework governing the arbitration and the specific facts of the case.
If the dispute involves a tort claim (such as fraud, defamation, or tortious interference), there may be a greater possibility of punitive damages being awarded in jurisdictions that recognize this remedy in arbitration. However, this would still depend on the applicable law governing the dispute and whether the law allows for such damages.
In court-based litigation, particularly in jurisdictions like the U.S., punitive damages are a more common remedy, especially in cases involving intentional wrongdoing or gross negligence. This is because courts have a public law function to deter wrongdoing in society.
In contrast, arbitration typically focuses on resolving commercial disputes in a neutral and private manner. The aim is to restore the injured party, not necessarily to punish the wrongdoer. Punitive damages are seen as inconsistent with the arbitration’s private and consensual nature.
Under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, awards that contravene public policy of the country where enforcement is sought may not be enforced. If a punitive damages award contradicts the public policy of the enforcement jurisdiction, it could be set aside or refused enforcement.
In an international commercial dispute, a company accuses a supplier of fraudulent behavior (such as misrepresenting the quality of goods). The tribunal may award compensatory damages to the company for its actual losses, and in rare cases, the tribunal might impose punitive damages if the conduct was particularly egregious and the applicable law allows for it.
In a dispute involving a state entity and a private investor under a bilateral investment treaty (BIT), the tribunal may be reluctant to award punitive damages. Instead, it will likely focus on compensating the investor for damages resulting from expropriation or unfair treatment, unless there is clear evidence of gross misconduct by the state.
Arbitrators have the discretion to award damages as they see fit, based on the principles of justice, equity, and the law governing the dispute. However, the nature of arbitration as a private and neutral dispute resolution mechanism typically limits the availability of punitive damages, as these are more associated with public legal proceedings.
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