Damages in International Arbitration in Thailand: Key Insights from CIArb Seminar

1. Winning on liability is not always enough

One key message from the event was that “winning” an arbitration on liability does not automatically mean a commercially successful outcome.

If the tribunal only awards nominal or very small damages, the claimant may technically succeed but still fail to obtain meaningful compensation for the time, costs, and risk taken in the proceedings.

The speakers emphasised that:

• The real measure of success is often whether the final award results in substantial, enforceable compensation that reflects the harm suffered.
• This requires careful, early planning of damages strategy, not just focusing on liability and legal arguments.

2. Importance of the applicable law for damages

The seminar highlighted how applicable law plays a critical role in damages:

• Different legal systems offer different remedies and levels of discretion to tribunals (for example, how lost profits, interest, or mitigation are treated).
• Damages experts work from assumptions given by legal counsel. If those legal assumptions are wrong or incomplete, the expert’s testimony can become irrelevant or open to attack.

For law firms and in-house counsel, this means the legal framework and quantum analysis must be aligned from the start, not handled in separate silos.

3. Early engagement and selection of damages experts

Another important practical takeaway was the value of engaging damages (quantum) experts early in the arbitration process:

• There is a common misconception that involving experts early is too expensive.
• In reality, bringing experts in only a few weeks before the report deadline often leads to “finger in the air” assumptions, rushed data collection, and increased risk of procedural issues (such as last-minute extension requests).

The speakers encouraged a more strategic approach:

• Use phased engagement – for example, a preliminary high-level assessment early on, followed by more detailed work as the case develops.
• Treat expert selection somewhat like arbitrator selection – consider:
  • Sector knowledge
  • Track record and reputation
  • Ability to explain complex calculations clearly
  • Language skills and document translation needs

The seminar also clarified that:

• Quantum experts are often accountants, finance, or valuation professionals who focus on intangible value – such as lost profits, intellectual property value, or discounted cash flow.
• They typically work with ranges and probabilities, rather than a single, absolute number, which can make their evidence more credible to tribunals.

4. How tribunals assess expert evidence

From the tribunal’s perspective, damages experts are most effective when they:

• Make their analysis easy to understand, instead of trying to show how technical or sophisticated it is.
• Coordinate with other experts (for example, technical or engineering experts) so that the factual and financial stories are consistent.
• Show some flexibility (for example, by presenting scenarios or ranges) rather than defending an unrealistic “perfect” number.

The panel also noted that if party-appointed experts are completely at cross-purposes, tribunals may consider appointing their own expert, which can reduce the persuasive impact of each party’s case.

Good presentation practice matters as well:

• Focus on a small number of key points instead of overloading slides.
• Use analogies and graphs to make complex economic issues accessible.
• Carefully fact-check all figures and references – any clear error can seriously damage the expert’s credibility.

5. Damages and third-party funding

Another interesting point discussed at the event was the link between damages analysis and third-party funding in international arbitration.

In many cases, third-party funders may agree to finance the arbitration (covering legal and expert costs) in exchange for a share of the amount recovered if the case succeeds. A solid, well-supported damages analysis can therefore:

• Make a claim more attractive to potential funders, and
• Support funding decisions by showing a realistic range of potential outcomes, rather than speculative or inflated numbers.

At the same time, parties must understand that funding decisions are case-by-case, depending on the strength of the claim, the quantum, the seat and applicable law, and other risk factors.

6. What this means for Lex Bangkok clients

Attending this CIArb Thailand Branch event has further strengthened our team’s understanding of:

• How damages strategy should be integrated with liability arguments from the outset.
• How to work more effectively with damages experts in international arbitration.
• How funding considerations can interact with damages analysis in cross-border disputes.

This knowledge supports our ongoing goal of helping clients – especially foreign investors and companies involved in cross-border contracts – to approach arbitration in a commercially realistic and strategically informed way.

Special thanks

Lex Bangkok would like to express our sincere thanks to the CIArb Thailand Branch for organising this insightful event and to SCL Nishimura & Asahi (Thailand) for kindly hosting the seminar at Athenee Tower. We also extend our appreciation to the speakers and sponsors, including MDD, for sharing their practical experience and contributing to a very engaging discussion on damages in international arbitration.

Disclaimer:
The above is a general summary of points we learned from the seminar and does not constitute legal advice. Each dispute and funding arrangement depends on its own facts and applicable law. Parties involved in actual or potential arbitration should seek specific advice from qualified counsel and, where appropriate, discuss with professional damages experts and funding providers.