The ICC Arbitration Conference 2026 featured an engaging discussion on one of the most challenging aspects of commercial arbitration: the assessment and quantification of damages. Moving beyond the question of whether a contractual breach has occurred, the session examined how parties must establish the actual loss suffered, demonstrate causation and substantiate the amounts claimed through credible evidence and financial analysis.
Titled “Let’s Talk About Numbers”, the session was moderated by Smitha Menon, with Justice Ferdino Rebello, Pratik Pawar and Ishani Vora joining the discussion.
The conversation opened with Smita Menon inviting the panellists to reflect on the challenges involved in assessing damages in arbitration. Through a series of questions directed individually to the speakers, she steered the discussion towards the relationship between legal principles, factual evidence and financial quantification.
Pratik Pawar, responding to the moderator’s opening question, brought attention to the practical difficulties involved in establishing and substantiating damages claims. The discussion highlighted that a claim cannot be sustained merely by demonstrating that a contractual obligation was breached. The claimant must establish the loss flowing from the breach and support the claim with an appropriate evidentiary foundation.
Ishani, responding to Smita Menon’s questions, contributed to the discussion on the evidentiary and analytical challenges involved in assessing damages. The conversation brought out the importance of distinguishing between assertions of commercial loss and opportunities that can actually be demonstrated through supporting material. The underlying factual record, business circumstances and assumptions informing a claim are central to determining whether the projected loss can be sustained.
When the discussion turned to Justice Rebello, he addressed the legal principles governing damages and the importance of distinguishing a contractual breach from the loss that is legally recoverable. The discussion examined Sections 73 and 74 of the Indian Contract Act, 1872, and the principles governing compensation for loss or damage arising from a breach of contract.
An important takeaway from Justice Rebello’s intervention was that damages are not a windfall. Compensation is intended to address the loss established by the claimant and cannot be treated as an opportunity for unjustified financial recovery. The existence of a breach does not dispense with the need to establish the nature and extent of the resulting loss.
The conversation subsequently moved to the practical challenges of quantifying damages. In response to Smita Menon’s further questions, Pratik Pawar discussed the importance of connecting the legal case with the factual and financial material supporting the claim. The discussion highlighted that counsel must understand the commercial context of the dispute and the underlying business model before arriving at a damages assessment.
The panellists also examined claims involving loss of profits and loss of opportunity. A particularly important distinction emerged between identifying that commercial opportunities existed in the market and demonstrating that the claimant would realistically have been able to pursue and benefit from those opportunities. Claims concerning future projects or anticipated business expansion require a credible evidentiary foundation rather than speculation about what might have happened.
Justice Rebello’s subsequent intervention brought the legal dimension of damages assessment into sharper focus. The discussion examined the relationship between breach, causation and the assessment of compensation, emphasising that the tribunal must consider whether the loss claimed can actually be attributed to the contractual breach.
Ishani’s contribution further developed the discussion around financial assessment and the role of expert analysis. The panellists considered how competing valuation methodologies and financial models may produce different assessments of loss. The reliability of such models depends on the assumptions adopted, the quality of the underlying information and whether the methodology adequately reflects the commercial circumstances of the dispute.
The discussion also explored the distinction between legal causation and factual causation. While legal causation concerns the connection between the breach and the loss recognised by law, factual causation requires examining whether the breach actually resulted in the loss asserted. The panellists discussed how intervening circumstances and subsequent events can complicate this assessment, particularly in claims involving projected profits and future commercial opportunities.
The role of expert witnesses and competing expert opinions formed another significant part of the conversation. The panellists highlighted that tribunals must look beyond the final figures presented by experts and examine the assumptions, methodology and evidence supporting their respective assessments. A sophisticated financial model cannot compensate for an inadequate factual foundation.
Pratik Pawar’s later intervention returned to the practical dimensions of damages assessment, including the importance of aligning the legal theory of the case with the financial evidence. The discussion reinforced that the assessment of damages requires close coordination between counsel and experts, with the factual record, contractual framework and valuation methodology supporting a coherent claim.
Justice Rebello’s further observations brought the discussion back to the principles governing the award of damages and the need for a legally and factually sustainable assessment. The session subsequently opened the floor to questions, allowing the discussion to extend to the practical difficulties faced by parties and practitioners in pursuing and evaluating damages claims.
The session offered a valuable examination of the intersection between contract law, commercial realities, financial valuation and arbitral decision-making. Its central message was that proving a breach is only the beginning: establishing the loss attributable to that breach requires rigorous evidence, a sound understanding of the underlying business and a defensible methodology of quantification.
The session formed part of the ICC Arbitration Conference 2026, with The Bar Bulletin as Media Partner.