Claims and Outcomes in ITA

Abstract

ITA is no longer a theoretical risk but a practical reality. Data offers a key debiasing tool to prevent cognitive illusions from skewing debates about the reality of realized risk. Chapter 5 uses direct, objective measures to assess outcomes that, in combination with costs, permits parties to undertake evidence-based cost-benefit assessment of an ITA’s net value. It initially explores ultimate outcomes by identifying whether tribunals awarded any damages or an equivalent remedy (i.e., an investor win), whether there was no damage award (i.e., a state win), or whether parties settled or otherwise discontinued the case. To nuance so as to understand outcomes on a phase-by-phase basis, it explores tribunals’ determinations for dispositive elements involving jurisdiction, merits, and damages. It then explores ultimate outcomes through two other alternative lenses, namely actual amounts awarded, which includes amounts from settlements, and investors’ relative success as compared to amounts claimed.