This chapter examines issues related to the definition and valuation of environmental damage in areas beyond national jurisdiction (ABNJ): what general principles govern reparation for environmental damage; what types of environmental damage should give rise to compensation or other measures of reparation; and how should such compensation or other measures be assessed in monetary terms? The chapter draws out the characteristics of, and considerations relating to, the global commons areas that might affect the approach taken to these questions, and how, if at all, compensation for environmental damage has been addressed in the existing regimes governing ABNJ under consideration in this study. To inform the discussion, the chapter examines other relevant international principles and rules that have been adopted or applied to address compensation for environmental damage at the international level.

Chapter 5 discusses damages in relation to shareholder indirect claims and the contract claims/treaty claims distinction. The damages dimension is key for this book because the substance of the claims is determined here based on the damages claimed. Using valuation methodologies, the chapter sheds light on the type of damages involved in shareholder treaty claims and the extent to which they differ from damages that may be raised in non-international claims by shareholders and companies. It shows that the harm is often the same, no matter how many entities in a corporate chain have standing to sue, whether different causes of action are available, and irrespective of the valuation method employed. Considering the company’s and third-party interests and other equitable considerations, investment tribunals must take into account this identity of harm when exercising their discretion to assess damages in shareholder indirect claims.