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9 St. Thomas J. Complex Litig. [ii] (2023)
Predicting Damages Awards: A Comparative Law & Economics Analysis on Contract Breach Litigations in American Common Law, French Civil Law, and International Commercial Law

handle is hein.journals/stthmsjl9 and id is 2 raw text is: ST. THOMAS JOURNAL OF COMPLEX LITIGATION - VOLUME 9 - SPRING 2023 PREDICTING DAMAGES AWARDS: A COMPARATIVE LAW & ECONOMICS ANALYSIS ON CONTRACT BREACH LITIGATIONS IN AMERICAN COMMON LAW, FRENCH CIVIL LAW, AND INTERNATIONAL COMMERCIAL LAW Frank S. Giaoui* Abstract From the perspective of both plaintiffs and defendants, the measurement of damages quantum is arguably of the utmost importance. Therefore, it may be surprising to learn that this process is left entirely to the court's discretion. This results in each litigation becoming a unique case calling for a sui generis outcome, which leads to unnecessary litigation and uncertain judicial decisions. As such, there is a need for alternative methods that are both objective and simple. Based on the results of an empirical analysis of several hundreds of precedent cases from American common law, French civil law, and International commercial law, this article formulates simple and practical suggestions for parties looking to improve their chances of success in recouping lost profits and lost opportunities. I demonstrate a clear negative correlation between the quantum of the plaintiff's claim and its outcome: the gap between the claim and defense widens when the claim increases. The court's decision logically reflects this wider gap. Second, I establish that the methodology used by the claimant in support of its claim has a concrete impact on the outcome. Thirdly, claimants operating in mature industries seem to have better chances of being granted damages than those operating in riskier businesses. Once validated on a larger sample and more widely shared, those results may benefit the academic debate, as well as courts and judges as tools to assist their rulings. Finally, the parties and * Copyright © 2023 by Frank S. Giaoui, J.S.D., Columbia Law School; PhD, Sorbonne Law School; Adjunct Professor, Lorraine University School of Law and Economics; MBA graduate and former Adjunct Professor of Finance, Essec Business School. The author consults with corporations and is the founder of Optimalex, Corp. a legal predictive analytics venture.

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