Feb 2016

…The difference in our positions is whether it is possible—and if so how—to determine what makes an international tribunal’s award of compensation for non-pecuniary harm equitable in the absence of evidence…

…If we could not evaluate the rights-compatibility of Framework remedies, we could not judge the effect of the waiver, and we could not make any recommendations for what to do next. Such a decision would not have been in the interests of stakeholders or businesses.

In pursuit of certainty and completeness, we therefore presumed that there is a basis on which to understand what makes international tribunals’ awards of compensation for sexual violence equitable. That choice, however, would require us to deconstruct awards to try to determine, with as much certainty and precision as reason would allow, what made them just. To fill in any blanks, we would need to reason from first principles rather than taking the precedent directly and as-is…