A Hermeneutical Perspective Upon the ‘Mitigation of Damages’ Principle: The Metamorphosis of a Concept in International Law
Andrea Bjorklund (ed.), Nappert Prize in International Arbitration, ICC/McGill, Paris, 2015
Transnational Dispute Management, July 2015
19 Pages Posted: 27 Sep 2015
Date Written: 2015
Abstract
The present study begins by reconsidering the conceptual genesis of the ‘damage mitigation’ principle in relation to its expansion beyond its initial common law boundaries. Thus, its transition to ‘lex mercatoria’ is depicted, emphasising the gradual manner in which the ‘mitigation of damages’ transformed into a fundamental principle of customary international law. Following this path, we further analyse the normative content of this principle in a number of interconnected and overlapping areas of international law.
More precisely, our initial ‘cosmological’ approach is supplemented with a detailed inquiry into the concept’s applications in commercial legal instruments – such as the CISG, the UNIDROIT Principles and the PECL, and arbitral awards, along with an analysis of its functional avatars in customary international and investment law. In this regard, our study proposes – alongside the already mentioned objectives – to exhaustively treat the forms in which ‘harm mitigation’ occurs in public and investment-related litigation. For those purposes, we shall follow a hermeneutical pattern, analysing the typologies this standard evinces in various areas of international law and depicting how its normative content varies in dissimilar contexts that involve either trade or sovereign actors.
Keywords: international law, international arbitration, investment law, hermeneutics, mitigation of damages
JEL Classification: K33
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