L'Arbitrato Commerciale Internazionale e i Danni Punitivi

In this paper I will address the issue of awarding punitive damages in International Commercial Arbitration. Since commercial arbitration is mainly about contracts, I will take into account punitive damages awards for the case of breach of contract. My argument will depart from a definition of punitive damages, a definition that is rooted in tort law, which is the primary source of this kind of damages. Hence, I will describe punitive damages through their theoretical underpinnings. To this regard I will argue about their deterrence purpose as well as the possibility to consider them as further compensation. I will conclude Section I with an Economic Analysis of Law perspective, arguing for the efficiency of punitive damages to deter wilful breaches of contract. In Section II I will undertake a comparative analysis of the role of Punitive Damages in various juridical contexts: I will investigate the possibility to make punitive damages available in different State jurisdictions, namely United States, England, Canada and Italy. The above mentioned comparative perspective will be useful to fully understand the role of punitive damages in International Commercial Arbitration and what consequences may arise when Arbitral Tribunals award such remedy. My argument will be twofold. First, I will consider whether or not arbitrators can award punitive damages for breach of contract and I will do that taking into account what the applicable law to a dispute would be. The second part of the section will be about the recognition and enforcement of foreign arbitral awards with particular respect to the public policy exception: do punitive damages jeopardize the effectiveness of an award? In the conclusion, taking into account what stated in the previous two sections of the paper, I will answer to the question whether punitive damages are suitable for International Commercial Arbitration and whether or not arbitrators should award them.