The Proportionality of Punitive Damages Awards in the Age of Globalized Business

Katarina Nikolić

I. Introduction 

In the era of globalized business, determining a proportionate punitive damages award for multinational corporations presents unique challenges, requiring a delicate balance between deterring egregious misconduct, avoiding excessive penalties that stifle economic growth, and ensuring international legal consistency.  Punitive damages, also known as “exemplary” damages, are monetary awards given to a plaintiff in a civil lawsuit, beyond the actual damages suffered. Their purpose is twofold: to punish the defendant for outrageous misconduct and to deter both the defendant and others from engaging in similar misbehaviour in the future. Although they are sometimes confused with aggravated damages, there is a clear division. Aggravated damages seek to compensate the claimant for any additional injury due to the manner in which the tort was committed. In contrast, punitive damages aim to punish the defendant.

Determining appropriate punitive damages for multinational corporations presents unique challenges. Striking a balance between deterring misconduct and avoiding excessive penalties that stifle economic growth is crucial. Additionally, ensuring international legal consistency adds another layer of complexity. This essay delves into the nature and purpose of punitive damages, specifically examining the challenges of applying them to globalized businesses. It explores the delicate balance between deterrence and excessive penalties, emphasizes the importance of international legal consistency, and considers how punitive damages might be incorporated or adapted within civil law systems.

II. THE HISTORY OF PUNITIVE DAMAGES

To truly grasp the concept of punitive damages, we must first delve into its history and origin. Punitive damages, a legal remedy used to punish and deter misconduct, have a long history dating back to ancient civilizations. The Code of Hammurabi, the Code of Manu, and the Bible all contain provisions for awarding additional compensation beyond actual damages in cases of egregious behaviour. The Romans also had similar laws, such as those providing for quadruple damages against debtors who failed to pay their debts. The concept of punitive damages as we know it today evolved from 18th-century English cases, where they were seen as a way to punish and deter outrageous acts. One of the earliest examples in the United States is the 1791 case of Coryell v Colbaugh, where a jury awarded punitive damages against a man who broke his promise to marry. The court instructed the jury to consider the gravity of the offense rather than just the actual harm caused. By the mid-19th century, the awarding of punitive damages had become a well-established part of the American legal system. The U.S. The Supreme Court recognized this practice, noting that juries could award such damages in cases of trespass and torts, focusing on the severity of the offense rather than just compensation.

Originally, punitive damages were primarily assessed against individuals, often for physical abuse. However, by the late 1800s, courts began allowing such awards against corporations, particularly railroads and other large companies that had accumulated significant wealth, sometimes at the expense of workers and consumers. The amount of punitive damages was often determined based on the financial condition of the defendant, and these awards became an important tool for regulating powerful entities that were not adequately controlled by criminal law.In the early 20th century, their use grew as a tool for consumer protection, reflecting an increasing awareness of the need to shield consumers from deceptive and unfair business practices. A jury (or judge) may award punitive damages when the defendant’s actions are found to be intentional, malicious, reckless, willful, wanton, or oppressive, demonstrating a conscious disregard for the plaintiff’s rights or interests. The harm suffered by the plaintiff can be physical, emotional, financial, or involve property damage or loss. The amount of the punitive damage award is determined by the jury, considering the seriousness of the defendant’s wrongdoing, the severity of the plaintiff’s injury, and the defendant’s wealth. 

Punitive damages are “quasi-criminal” in nature, as they blend elements of civil and criminal law. While awarded as “damages” in a civil lawsuit, their purpose is non-compensatory and akin to a penal fine. However, because they are considered civil, the procedural safeguards of criminal law, such as the beyond-a-reasonable-doubt burden of proof and prohibitions against double jeopardy, excessive fines, and compulsory self-incrimination, generally do not apply. The doctrine of punitive damages has both judicial and legislative roots. While considering a creature of common law, its historical basis and current sources can be found in statutory and sometimes constitutional provisions. Many states have legislative provisions authorizing punitive damages in cases of aggravated misconduct. Numerous federal and state statutes provide for punitive or multiple damages in specific situations. Conversely, some states prohibit punitive damages in certain contexts, and a few states prohibit them altogether unless specifically authorized by statute. 

While punitive damages have a long history, their application and interpretation vary across different legal systems.

III. VARYING LEGAL STANDARDS ACROSS COMMON LAW JURISDICTIONS

While punitive damages are generally available in common law countries, their use is subject to significant variation and limitations across different  jurisdictions.  By examining how various legal systems approach these challenges, we can develop a deeper insight into the function of punitive damages within our own legal framework and enhance our ability to address related issues on an international scale. 

United Kingdom

The common law tradition of awarding punitive damages traces its roots to England.  The first major reported case in England to award punitive damages was Wilkes v. Wood, which was decided in 1763. In Wilkes, punitive damages were awarded to a publisher after the Secretary of State to the King suspected that the publisher  had printed a libelous pamphlet about the King and had the publisher’s home searched and property seized without obtaining a proper warrant. Chief Justice Pratt, explained that the award of punitive damages satisfies the injured person, punishes the guilty, deters such actions in the future, and shows the jury’s detestation of the wrongful conduct. Within a decade of Wilkes, courts commonly awarded punitive damages in tort actions such as assault, false imprisonment, defamation, seduction, malicious prosecution, and trespass. However, these damages were never allowed in breach of contract cases. 

In 1964 England, the scope and application of punitive damages have been drastically limited and shaped by the  Rookes v Barnard case. In this case, Lord Devlin restricted punitive damages to three categories of cases: 1) oppressive, arbitrary or unconstitutional actions by government servants, 2) conduct calculated by the defendant to make a profit, which may well exceed any compensation payable to the claimant, and 3) cases where punitive damages are expressly authorised by statute. Lord Devlin expressed doubts about the legitimacy of punitive damages, viewing them as a conflation of civil and criminal law without the safeguards of criminal proceedings. Nevertheless, he acknowledged their presence in English law and advocated for a more restrictive approach in future cases. The Rookes decision was later reinforced in Cassell v Broome, which clarified the restrictive approach to punitive damages.

The three categories of punitive damages established in Rookes have been further explored in subsequent cases.

1. First, the category addressing oppressive, arbitrary or unconstitutional actions by government servants focusing on protecting individual rights against abuses of authority. 

This category focuses on the abuse of power by those in positions of authority and protecting individual rights against arbitrary government action while upholding the rule of law. This principle was emphasized in  Huckle v Money, where a wrongful detention of a claimant led to the court recognizing the severity of unlawful governmental actions, even in cases where the harm appeared minimal. The court stressed the nature of the government’s conduct rather than the extent of the harm.  The court held that “to enter a man’s house by virtue of a nameless warrant, in order to procure evidence, is worse against private individuals or corporations, however powerful they may be. They will also not be awarded against public bodies such as a nationalized water authority which is not exercising an executive function. However, they may be awarded against the police or local government officials. In other words, the court in this case emphasized the gravity of unlawful entry into a private residence, even if the actual harm caused appeared minimal. The case established that the focus should be on the nature of the government’s action, rather than solely on the extent of the harm suffered by the individual. The scope of this category has been further defined in the case Holden v Chief Constable of Lancashire, in which it was held that not all false arrests will merit punitive damages and that this will be a matter for the jury. The court did find, however, that the claimant was not required to show oppressive, arbitrary and unconstitutional conduct by the official. In this case it was confirmed that punitive damages could be awarded without proof of malicious or unconstitutional behaviour, as long as the conduct was outrageous enough to warrant punishment and deterrence.  

2. The second category, dealing with conduct aimed at making a profit exceeding compensation, highlights situations where a defendant’s primary motivation is financial gain. 

In order to establish whether the defendant’s primary motivation is financial gain, the claimant must demonstrate that the defendant acted deliberately and knowingly, even if they were aware of potential legal risks. Essentially, the defendant must have decided to proceed with the wrongful act because they believed the potential profit outweighed the potential consequences. A clearer understanding of this category can be gained by examining the Cassell v Broome case. In this case, the House of Lords held that the court should investigate whether the defendant was aware of the fact that what he was planning to do was against the law (or had shown reckless disregard as to whether the proposed conduct was legal or illegal) and had nevertheless decided to carry on because the prospects of material advantage outweighed the prospects of material loss. What the case emphasized is that the defendant had to be  aware of the illegality of their actions or exhibited reckless disregard for the law while prioritizing potential profit. Similarly, in Axa Insurance UK Plc v Financial Claims Solutions Ltd.punitive damages were granted in cases involving fraudulent insurance claims, where the defendant’s cynical exploitation of the legal system was deemed deserving of a significant deterrent. In some, this category would involve cases that are concerned with libel, trespass, and other malicious and illegal acts.

3. The third category, addressing cases where punitive damages are expressly authorized by statute.

This category is less common and only occurs when it is specifically authorised by statute. Section 97(2) of the Copyright, Designs and Patents Act 1988 includes provisions that may allow for punitive damages through its mention of “additional damages”, although the extent of this interpretation remains a subject of debate. The House of Lords in Redrow Homes Ltd v Bett Brothers Plc left open the possibility of punitive damages under this Act, but Lord Clyde suggested that they might be more accurately categorized as aggravated damages. More recently, Pumfrey J in Nottinghamshire Healthcare National Health Service Trust v News Group Newspapers Ltd has found that the section permits only aggravated damages, but on a basis far wider than that admitted at common law, and contains an element of restitutionary damages. There may be debate about whether “a broader form of aggravated damages” that directly addresses the severity of the breach can be considered separate from punitive damages, or whether, in practice, the statute provides discretion to award damages that include a punitive component.

The restrictive approach outlined in Rookes v Barnard was further complicated by the “Cause of Action” test in Rookes v Barnard initially severely restricted the availability of punitive damages in English law. This test was later overturned in Kuddus v Chief Constable of Leicestershire Constabulary, where the House of Lords emphasized that the facts of the case should be the central focus in determining eligibility for punitive damages. This shift recognized the evolving nature of legal wrongs and the need for flexibility in applying legal principles.  However, the availability and scope of punitive damages remain subject to ongoing debate. While Rowlands v Chief Constable of Merseyside Police established that employers can be held vicariously liable for punitive damages awarded against their employers, this raises concerns about potential unfairness and the potential for excessive burdens on employers. The possibility of both criminal and civil penalties for the same conduct raises concerns about proportionality and the potential for excessive punishment. 

In England, six key limitations restrict the awarding of punitive damages: (1) the “if, but only if” test, which requires that punitive damages be granted only when compensatory damages are insufficient to punish and deter misconduct; (2) the direct victim requirement, meaning the plaintiff must have personally suffered harm; (3) the avoidance of double punishment, preventing punitive damages if the defendant has already been penalized for the same conduct; (4) the complication of multiple plaintiffs, where distributing punitive damages fairly among affected parties can be problematic ; (5) the good faith defense, which may exempt a defendant who acted without intentional wrongdoing; and (6) the plaintiffs contribution to the harm, which can disqualify them from receiving punitive damages if they played a role in causing the wrongful act.

Courts play a crucial role in guiding the assessment of damages, ensuring that awards are fair, proportionate, and not excessive. In claims involving false imprisonment or malicious prosecution, judicial oversight is necessary to maintain consistency and transparency, with separate awards made for each category of damages. Similarly, in determining the quantum of punitive damages, courts consider a range of aggravating and mitigating factors, including the defendant’s conduct, the presence of multiple plaintiffs, and whether the plaintiff contributed to the harm. Just as courts emphasize the need for restraint in assessing punitive damages to prevent disproportionate penalties, they also stress the importance of judicial direction in compensatory awards, setting appropriate upper and lower limits. This careful balancing ensures that damages serve their intended purpose – deterrence and justice – without leading to arbitrary or excessive financial penalties. 

Traditionally, juries have been given only general guidance when determining punitive damages. However, in 1997, in response to excessively high jury awards, the Court of Appeal in Thompson v. The Commissioner of Police of the Metropolis rules that trial judges should take a more active role in guiding juries on punitive damages in cases involving police misconduct. The court outlined that judges should inform the jury that; (1) the plaintiff has already been compensated for his or her injuries and that any award of compensatory and aggravated damages includes, from the defendant’s viewpoint, a measure of punishment; (2) the jury should award punitive damages only if, in their view, the basic and aggravated damages are inadequate to punish the defendant for oppressive, arbitrary, or unconstitutional behaviour; (3) a punitive damages award provides a windfall to the plaintiff and that an award of such damages may mean that that amount may not be available to be spent by the police for the benefit of the public; and (4) the amount of punitive damages should be no greater than the minimal amount needed to mark the jury’s disapproval of the defendant’s behaviour.

The Court of Appeal also established general guidelines, or “brackets,” to assist juries in determining appropriate compensation and punitive damages. Regarding punitive damages, the court indicated that such awards in these cases are unlikely to be lower than £5,000, suggesting that amounts below this threshold may not be justified. Additionally, the court stated that for an award to reach £25,000, the defendant’s conduct must be particularly reprehensible, while £50,000 should be considered the absolute upper limit. Moreover, the court emphasized that punitive damages should typically not exceed three times the amount of basic damages, except in cases where the basic damages are relatively low.

In England, excessive punitive damages are not permitted.  However, since English courts generally defer to jury decisions, they rarely overturn punitive damage awards for being excessive. As Lord Hailsham explained in Cassell & Co. Ltd. v. Broome, an award of punitive damages may not be set aside unless it is “so large… that twelve sensible men could not have reasonably given them” or that “no reasonable proportion existed between it and the circumstances of the case”. However, the Court and Legal Service Act of 1990 granted the Court of Appeal the authority to overturn a jury’s award and replace it with its own if deemed excessive. As a result, in response to several cases involving disproportionately high awards, the Court of Appeal has started reviewing these awards more critically and has significantly reduced them in numerous cases.

In John v. MGNrenowned entertainer Sir Elton John sued the national newspaper publisher MGN Ltd. after it published an article falsely claiming he was following a dangerous diet that could be fatal.The jury initially awarded John £75,000 in compensatory damages and £275,000 in punitive damages. MGN appealed the decision, and the Court of Appeal reduced the compensatory damages to £25,000, reasoning that while the article was false, offensive, and recklessly unverified, it had not harmed John’s reputation as an artist. The court also found the £275,000 punitive damages award to be “manifestly excessive” given the circumstances. Instead, it ruled that £50,000 would be sufficient to “ensure justice for both sides” and “fully uphold the public interest.”

In Thompson, the Court of Appeal  reviewed two consolidated cases where punitive damages were considered excessive.Applying its established guidelines and damage brackets, it reduced one of the punitive damages awards. In the first case, the plaintiff sued the police for false imprisonment and malicious prosecution, receiving £1,500 in compensatory damages and £50,000 in punitive damages. In the second case, the plaintiff sued for wrongful arrest, false imprisonment, and assault, with the jury awarding £20,000 in compensatory damages. The Court of Appeal chose not to alter the first case’s award, as its total of £51,500 was not significantly higher than the £45,000 the court would have awarded by increasing compensatory damages to £20,000 and lowering punitive damages to £25,000. However, in the second case, the court found the £200,000 punitive damages award excessive. While it acknowledged that punitive damages were justified due to unprovoked violence involving multiple officers at the plaintiff’s home, it noted that the incident lasted only a few hours and that the plaintiff had already received aggravated damages. As a result, the court reduced the punitive damages to £15,000, and stated that  “should suffice to demonstrate publicity the strongest disapproval of what occurred and make it clear to the commissioner and his force that conduct of this nature will not be tolerated by courts”.

Following the Thompson guidelines, the Court of Appeal in Goswell v. Commissioner of Police for Metropolis also reduced a jury’s damages award. The plaintiff, who had been unlawfully detained for twenty minutes and assaulted by police, was initially awarded £120,000 for assault, £12,000 for false imprisonment, and £170,000 in punitive damages. The Court of Appeal reduced these amounts to £22,500 for assault, £100 for false imprisonment, and £10,000 for aggravated damages. Regarding the punitive damages, the court emphasized that such awards should serve to mark disapproval of the defendant’s actions while also considering that they provide a financial windfall to the plaintiff and reduce public police funds. Citing the Thompson damage brackets, which set a minimum of £5,000 and a maximum of £50,000 for punitive damages, with £25,000 reserved for particularly egregious conduct, the court reduced the punitive damages from £170,000 to £15,000. It explained that the misconduct involved a single blow by one police officer, whom the commissioner had attempted to discipline, making the revised amount appropriate within the broader context of police misconduct cases.

In the most recent decision of note, Watson v. Chief Constable of Cleveland Police, a jury awarded the plaintiff £500 for assault, £3,500 for malicious prosecution, £1,500 in aggravated damages, and £16,000 in punitive damages. On appeal, the Court of Appeal noted that while the compensatory and aggravated damages fell within the guidelines established in Thompson, the punitive damages exceeded the appropriate limit by £1,000. The court also referenced Thompson, which stated that, except in exceptional cases, the total award—including basic, aggravated, and punitive damages—should not surpass three times the basic damages. Applying this principle, the court determined that the punitive damages should not have exceeded £6,500. While it acknowledged that the circumstances of the case justified an award above the Thompson bracket, it found the £16,000 punitive damages award excessive, particularly because it far exceeded the £6,500 threshold. Consequently, the court ruled that £9,000 in punitive damages would be a more appropriate amount.

In sum, England appears to be expanding the number of actions in which punitive damages may be awarded while trying to limit the amount of punitive awards that are imposed. In an attempt to make punitive awards less indeterminate, the courts are giving more direction to the juries and judges who assess the penalties.

There is an ongoing debate about the appropriate role of punitive damages in tort law. While deterrence is a key objective, it must be balanced against the potential for excessive or disproportionate penalties. Despite these challenges, punitive damages continue to play a role in English law, albeit with careful judicial scrutiny. The courts strive to balance the need to deter egregious conduct with the principles of fairness, proportionality, and the overall objectives of the tort law system. Ultimately, in England the successful application of punitive damages requires a careful balancing act. Courts must ensure that these awards are proportionate, justifiable, and serve their intended purpose of deterrence without unduly burdening defendants or creating inconsistencies within the legal system.

United States of America

The United States has seen the most extensive application of punitive damages, with awards increasing in both frequency and size over the past several decades. Between 1996 and 2001, the number of punitive damages awards exceeding $100 million doubled, and in 2001 alone, over $162 billion in punitive damages were awarded or upheld on appeal. While punitive damages serve primarily to punish and deter wrongful conduct, they remain subject to constitutional limitations, particularly under the Due Process Clause, which aim to prevent excessively large or arbitrary awards.

Punitive damages in the U.S. can be awarded when a defendant’s conduct is particularly egregious, malicious, or reckless, going beyond mere negligence. Courts commonly refer to this standard as “willful and wanton misconduct”, which signifies a deliberate or conscious disregard for the rights and safety of others. While some states require proof of malicious intent before awarding punitive damages, the majority allow them when the defendant knowingly disregards a substantial risk of harm.

Unlike compensatory damages, which are automatically awarded when liability is established, punitive damages remain discretionary. Even if a plaintiff meets the legal standard, juries are not obliged to grant them. Judges often instruct juries that punitive damage may be appropriate in addition to compensatory relief, but they emphasize that this is a moral judgment left to the jury’s discretion. However, judges do not have the authority to mandate punitive damages. In contrast, if a jury wrongfully denies compensatory damages despite clear evidence, a judge may intervene by awarding damages directly or ordering a new trial.

For punitive damages to achieve their intended deterrent effect, they must be substantial enough to impact the defendant. Consequently, juries are frequently presented with evidence of the defendant’s financial status, particularly in cases involving large corporations or wealthy individuals. This has led to some exceptionally high punitive damage awards, particularly when courts seek to penalize systemic or repeated misconduct. However, judges retain the authority to reduce punitive damages if they are deemed excessive, applying factors such as the reprehensibility of the defendant’s actions, the degree of harm suffered by the plaintiff, the prevalence of similar misconduct, and the ratio between punitive and compensatory damages. The U.S. The Supreme Court has emphasized that punitive damages should maintain a reasonable proportionality to the actual harm caused.

Justification for Punitive Damages:

Several legal scholars and courts have outlined key justifications for punitive damages in the U.S:

1. Compensation for Undercompensated Harms: Some injuries, particularly those involving reputational damage or emotional distress, are not fully addressed by compensatory damages alone. Punitive damages can help bridge the gap.
2. Deterrence of Misconduct: If compensatory damages alone are insufficient to deter wrongful conduct, punitive damages serve as an additional deterrent, ensuring that misconduct does not become economically advantageous.
3. Preventing Unjust Enrichment: In some cases, compensatory damages do not fully account for the benefits a defendant gains from their misconduct. Punitive damages help prevent situations where wrongdoing becomes profitable.
4. Addressing Concealed or Under Litigated Wrongdoing: When defendants engage in concealed misconduct or when plaintiffs are discouraged from suing due to the relatively small potential damages, punitive awards can compensate for these enforcement gaps.
5. Expressing Societal Condemnation: Punitive damages provide an avenue for the legal system to reflect the moral outrage of the community against particularly harmful conduct.
6. Reducing Pressure on the Criminal Justice System: In some cases, punitive damages serve a quasi-criminal function by punishing wrongdoing that might otherwise go unaddressed due to prosecutorial discretion or limited criminal penalties. 
7. Preventing Private Retaliation: By ensuring that harmful conduct is adequately punished through legal means, punitive damages help discourage individuals from seeking retribution outside the judicial system .

Case Examples Involving Punitive Damages in the UNITED STATES:

1. The McDonald’s Coffee Case: 

Perhaps the most well-known case involving punitive damages is the lawsuit filed by Stella Liebeck against McDonald’s after she spilled hot coffee on herself. Contrary to popular belief, she was a passenger in a stationary car, not a driver. She sustained severe burns, requiring hospitalization and surgery. Despite the fact that hot coffee itself is not inherently defective, a New Mexico jury awarded the plaintiff $160,000 in compensatory damages and $2.7 million in punitive damages. The justification for the punitive award was that McDonald’s knowingly brewed coffee at dangerously high temperatures and had received over 700 previous complaints about burns from similar incidents. The jury wanted to send a message to McDonald’s by making them pay for two days’ worth of coffee sales. However, the judge later reduced the punitive award to $480,000 (three times the compensatory damages). McDonald’s appealed, and the case was eventually settled for $80,000. Afterwards, McDonald’s reportedly presented with serious injuries and evidence of widespread harmful practices, may award substantial punitive damages. It also highlights how judges can adjust excessive awards. Furthermore, misconceptions about the case – such as the plaintiff being a driver, not being seriously injured, and receiving millions – demonstrate how sensational legal cases can fuel public debate.

2. BMW of North America, Inc. v Gore, (1996) 517 U.S. 559   

This case addressed a $4 million punitive damages award against BMW for failing to disclose that a new car had been repainted before being sold. The Alabama Supreme Court upheld the award, deeming BMW’s conduct “reprehensible” due to a nationwide policy of nondisclosure. However, the U.S. The Supreme Court reversed the decision, finding the punitive award excessive. The Court argued that the $4 million was 500 times the actual damages, which did not align with the harm caused. Furthermore, the Court found that BMW had not been given proper notice that its conduct could lead to such a substantial penalty. The Court also expressed concerns about the impact of Alabama’s decision on interstate commerce, as the conduct was lawful in other states. This case highlighted the importance of proportionality in punitive damages and emphasized the need for a careful balance between deterrence and fairness in awarding such damages.

3. State Farm Mutual Automobile Insurance Co. v. Campbell 2003 ​​Case Summary:

This landmark Supreme Court case addressed the constitutionality of a $145 million punitive damages award against State Farm. The insurance company had refused to settle a claim within the policy limits, leading to a large excess judgment against the insured. A jury awarded $145 million in punitive damages, which was much higher than the $1 million in compensatory damages. The Court found the punitive award unconstitutional, citing several factors, including the reprehensibility of State Farm’s conduct, the disproportionate nature of the damages, and the absence of comparable civil penalties. The Court emphasized that punitive damages must be reasonably related to the harm caused and the states cannot punish conduct that is lawful in other jurisdictions. 

4. Philip Morris USA v Williams (2007): 

This case involved a lawsuit  by the widow of a deceased smoker against Philip Morris, which had allegedly misled the deceased about the risks of smoking. The jury awarded $79.5 million in punitive damages, in addition to compensatory damages. The key issue was whether the Due Process Clause allowed the jury to award punitive damages based on harm caused to individuals who were not part of the lawsuit. The Court ruled that it violated due process to award punitive damages for harm to non-parties. The Court emphasized the need for defendants to be given notice of the specific charges against them and an opportunity to defend themselves. This decision set limits on how punitive damages can be awarded for conduct that harms non-parties.

5. Honda Motor Co. v. Oberg and Cooper Industries v. Leatherman Tool Group, Inc.

In Oberg, the Court held that a state’s failure to provide defendants with a meaningful way to obtain post verdict judicial review of the amount of a punitive damages award violated the Due Process Clause because there was no protection against arbitrary and inaccurate adjudications that deprive a party of liberty or property. In Leatherman, the Court ruled that whether the Gore guidepost has been met must be reviewed de novo on appeal.

It can be noticed that the Supreme Court’s recent decisions unambiguously illustrate that the Court is deeply concerned with both the process for awarding punitive damages as well as the size of the awards. It has held that procedural due process mandates that safeguard be in place to ensure fairness in the awarding of punitive damages. Furthermore, it has ruled that substantive due process prohibits grossly excessive awards of punitive damages. Thus, it is likely that American courts in the coming years will more closely scrutinize punitive damages awards to ensure (by United States standards) that they are reasonable and proportionate to the wrong committed.

In summary, the legal framework surrounding punitive damages in both the United States and England revealed significant differences in approach. While England maintains a more restrictive approach, focusing on specific categories of misconduct, the U.S. allows for broader applications, often empowering juries to impose substantial penalties. Despite the potential benefits, such as deterrence and societal disapproval, punitive damages also raise concerns about proportionality and fairness. The evolving legal principles surrounding punitive damages reflect the challenge of balancing these competing interests within different legal systems. Both countries continue to grapple with the tension between deterring harmful conduct and preventing excessive punishment, shaping the ongoing debate about the role of punitive damages in modern law. 

IV. TRADITIONAL RESISTANCE AND EMERGING TRENDS IN THE RECOGNITION OF PUNITIVE DAMAGES

Civil law jurisdictions have historically resisted recognizing and enforcing punitive damages awards originating from common law systems like that of the United States. This resistance is rooted in a fundamental divergence in legal philosophy. While common law systems use punitive damages as a deterrent and a means of societal retribution, civil law systems typically restrict such measures to criminal law contexts. Most civil law systems restrict compensation in private lawsuits to amounts that restore the injured party to their pre-harm state. In these jurisdictions, punitive damages are viewed as a form of punishment that can only be imposed through criminal proceedings. In fact, some countries consider the prohibition of punitive damages in civil cases to be a fundamental aspect of public policy. Consequently, they may decline to recognize or enforce foreign court judgments or arbitral awards that include punitive damages.  As a result, many civil law countries have traditionally refused to recognize American punitive damages awards, viewing them as incompatible with their own public policy principles. 

However, recent developments indicate a growing openness to the concept of punitive damages in several jurisdictions. Countries such as France, Germany, and those within the European Union show signs of becoming more receptive to the idea. In France, proposed revisions to the Civil Code contemplate the inclusion of punitive damages under specific circumstances, while German scholars are increasingly recognizing the potential for “penal damages” in civil cases. The European Commission has also explored allowing double damages in antitrust cases, a form of punitive measure. Moreover, jurisdictions beyond Europe, including South Australia, Canada, and Spain, have shown a willingness to recognize and enforce punitive damages, even though these systems typically do not incorporate punitive damages into their own legal frameworks. While this emerging trend indicates a shift in global legal thinking, an in-depth examination of legal and judicial developments in France, Germany, the EU, Australia, Canada and Spain reveals distinct nuances in their approaches to recognizing and enforcing foreign punitive damages awards. 

The Case of France

Traditionally, French law has adhered to the principle of compensatory damages, with the primary aim of  limiting redress in civil actions to restoring the aggrieved party to the status quo ante. While French law recognises non-pecuniary damages, such as those awarded for emotional distress, these are strictly compensatory in nature, designed to alleviate the victim’s suffering rather than to punish the wrongdoer. This distinction reflects a deeper principle within French legal tradition, where punitive measures are typically reserved for the criminal justice system. However, recent developments suggest a potential shift in this long-standing legal tradition. In particular, proposed revisions to the French Civil Code reflect an interest in exploring punitive damages in certain cases. Furthermore, scholarly discourse and evolving judicial interpretations in other civil law jurisdictions, such as Germany, and within the European Union, point towards a growing recognition of the need to address egregious conduct that may necessitate measures beyond traditional compensatory remedies.

In 2004, President Jacques Chirac initiated a reform of the French Civil Code, leading to a draft proposal in 2005 that introduced a provision allowing punitive damages in selected cases. This departure from French tradition would enable courts to award punitive damages when the defendant’s conduct is not only intentionally wrongful but also notably profitable. Article 1371 of the proposed Code of Obligations outlines specific conditions for awarding punitive damages, a potential step toward greater flexibility in French civil liability. It reads: “One whose fault is manifestly premeditated, particularly a fault whose purpose is monetary gain, may be ordered to pay punitive damages in addition to compensatory damages. The judge may allocate part of these damages to the public treasury and must provide clear reasoning for the amount and its distinction from compensatory damages”.

 A growing movement within French legal circles has supported the recognition of punitive damages, with one scholar predicting in 2007 that French courts would no longer outright reject the French Supreme Court overturned its prior stance and accepted the principle of recognizing U.S. judgments that include punitive damages. The case involved a French company whose catamaran, sold to a couple for $826,009, was found defective, leading a California court to award the couple a total of $3,259,734.45, including $1,460,000 in punitive damages. This landmark decision marked the first time the French Supreme Court agreed to consider the recognition of a foreign judgment with punitive elements, affirming that such judgments do not inherently violate French public policy if the punitive damages are proportionate to the harm caused. 

The Case of Germany

Similar to France, Germany has  traditionally rejected punitive damages in civil cases, based on deeply entrenched legal principles. In a landmark 1992 ruling, the German Federal Court of Justice refused to enforce a California court’s punitive damages award in a sexual abuse case, recognizing only the compensatory damages. The court’s reasoning rested on two main principles: first, that punitive damages, designed to punish the wrongdoer, are incompatible with Germany’s focus on compensating victims, and second, that imposing such sanctions falls within the state’s jurisdiction in criminal proceedings. Prohibits the award of punitive damages in civil cases. This prohibition is deeply rooted in German legal principles, with the German Federal Court of Justice (the highest court in Germany) considering it a matter of fundamental public policy. In a landmark 1992 decision, the Federal Court of Justice refused to enforce a punitive damages award issued by a California court. This decision stemmed from a sexual abuse case where the California court awarded both compensatory and punitive damages to the victim. While the German court recognized and enforced the compensatory damages, it categorically rejected the punitive damages award.

The court’s rationale for this decision rested on two key principles:

1. Violation of the “Compensation Idea”: The court argued that punitive damages, which aim to punish the wrongdoer, contradict the fundamental principle of civil law in Germany, which focuses solely on compensating the victim for their losses.
2. Infringement on the State’s Penal Monopoly: The court emphasized that the imposition of punitive sanctions is within purview of the state through criminal proceedings. 

Despite a long-standing historical aversion to punitive damages, recent developments suggest a potential shift in German legal thinking. While German law explicitly prohibits punitive damages in civil cases, a prominent German scholar, Volker Behr, argues that this prohibition is not always strictly adhered to in practice. Behr observes that German courts, while ostensibly adhering to the principle of compensatory damages, often award damages that appear to serve a punitive function. For instance, in cases involving violations of personal rights, courts have acknowledged the need for damages to have a deterrent effect, even if this exceeds the actual financial loss suffered by the plaintiff. Furthermore, in intellectual property cases, certain methods of calculating damages, such as those based on the defendant’s profits, may inadvertently serve a punitive purpose. Moreover, recent developments at the European Union level are exerting a significant influence on German jurisprudence. In response to European directives and Court of Justice rulings, German courts are increasingly recognizing the need for damages to serve a deterrent function, particularly in cases of discrimination. This trend, evident in sex discrimination cases, is likely to extend to other forms of discrimination as the European Union enacts further directives in this area.

Based on these observations, Professor Behr predicts that while German courts may continue to resist the direct enforcement of large American punitive damages awards, they may gradually become more receptive to the concept of punitive damages in certain limited circumstances. This evolution may ultimately lead to a greater degree of compatibility between German and American approaches to civil damages.

The German Monopolies Commission has advocated the introduction of double damages in certain antitrust cases. This recommendation, aimed at deterring anti-competitive behaviour and encouraging private enforcement of antitrust laws, signifies a potential shift in the German legal landscape. While legislation to implement this proposal has yet to materialize, the Commission’s stance suggests a growing recognition within Germany of the potential value of punitive-like remedies in specific contexts. 

The Case of the European Union

The most significant potential shift towards accepting punitive damages may originate from the European Union itself. In a recent Green Paper on damages actions for breach of European Union (EU) antitrust rules, the European Commission explored potential reforms aimed at improving the enforcement of competition law. This initiative, intended to enhance the effectiveness of private antitrust actions, included a proposal to authorize double damages for cases involving horizontal cartels. The Commission argued that such a measure would provide a powerful incentive for individuals and businesses to bring legal action against companies engaged in these particularly harmful anti competitive practices. While the Office of Fair Trading in the United Kingdom expressed openness to considering this approach, several civil law countries voiced strong reservations, arguing that it would fundamentally alter their established legal principles regarding damages and potentially introduce punitive measures that are incompatible with their legal systems. Scholarly commentary on the European Commission’s proposal for double damages in antitrust cases is similarly divided. Some scholars argue that these reforms are crucial to ensure effective enforcement of antitrust laws. Others, however, contend that such measures are unnecessary and potentially incompatible with the fundamental legal principles of many civil law countries, which traditionally reserve punitive sanctions for the state within the criminal justice system.

The Case of Spain

Despite Spain’s prohibition of punitive damages in domestic civil proceedings, the Spanish Supreme Court recently enforced an American judgment that included treble damages for intellectual property infringement, trademark violation, and unfair competition.

In this case, an American company and an Italian company successfully sued a Spanish company in a Texas federal court, obtaining a judgment that included a significant award of treble damages. When the plaintiffs sought to enforce this judgment in Spain, the Spanish defendant argued that the treble damages portion should be disregarded as it constituted a punitive measure contrary to Spanish public policy. However, the Spanish Supreme Court ultimately enforced the entire judgment, including the treble damages award. This decision highlights a potential shift in Spanish courts’ approach to the recognition and enforcement of foreign judgments, even when they contain elements that may not be permissible under Spanish domestic law.

The Spanish Supreme Court, while acknowledging the fundamental differences between Spanish and U.S. legal systems regarding punitive damages, ultimately concluded that the treble damages award in this case did not necessarily contravene Spanish public policy. The court recognized that the U.S. judgment served multiple purposes, including compensation, deterrence, and societal disapproval of the defendant’s actions. Importantly, the court acknowledged a degree of overlap between these concepts and the principles of compensation and deterrence already recognized within the Spanish legal system, albeit to a lesser extent.

Furthermore, the court noted the U.S. courts’ emphasis on proportionality in awarding punitive damages and found that the treble damages in this specific case were reasonably related to the actual harm caused. The court also emphasized the international interest in protecting intellectual property rights, a principle that is also recognized within the Spanish legal framework. Based on these considerations, the court determined that the treble damages award, while not directly permissible under Spanish law, did not constitute a fundamental violation of Spanish public policy. This decision highlights a nuanced approach to the recognition of foreign judgments, demonstrating a willingness to consider the underlying principles and objectives of the foreign award within the broader context of international legal norms. The Spanish Supreme Court acknowledged that the American judgment served multiple purposes, including compensation, deterrence, and punishment. Recognizing the inherent difficulty in distinguishing between these objectives, the court noted a degree of overlap between compensatory and punitive elements within the Spanish legal system itself.

Furthermore, the court emphasized the principle of proportionality observed in U.S. jurisprudence, where punitive damages are typically awarded in proportion to the harm caused. In this specific case, the treble damages award was deemed proportionate to the actual harm suffered, aligning with established legal norms. Finally, the court recognized the international significance of protecting intellectual property rights and acknowledged that the underlying interests served by the American judgment, such as deterring infringement, are not entirely foreign to Spanish law. Based on these considerations, the court concluded that the concept of punitive damages, as applied in the specific case, did not fundamentally contradict Spanish public policy. This decision suggests a degree of flexibility in the Spanish courts’ approach to the recognition and enforcement of foreign judgments, even when they contain elements that may not be readily accommodated within the traditional framework of Spanish civil law. 

The Case of Serbia

Unlike common law jurisdictions, Serbia does not currently recognize punitive damages, focusing instead on compensatory remedies. However, as Serbia integrates further into the global economy, there is increasing discussion about whether punitive damages could serve as a deterrent for corporate misconduct.

One of the key challenges in introducing punitive damages is the Serbian legal system’s reliance on compensation rather than punishment in civil cases. However, cases of severe negligence – such as medical malpractice or corporate fraud- highlight the need for stronger deterrents. For example, if a Serbian food company knowingly distributed contaminated products, current Serbian law would focus on compensating victims rather than imposing additional financial penalties on the company.

Future legal reforms could explore the adaptation of punitive damages in specific cases, such as gross negligence in healthcare, consumer protection violations, or environmental harm. While such changes may face resistance from traditional legal scholars, they could align Serbia’s legal system with global trends in holding corporations accountable.

The Law of Contracts and Torts is the primary legal framework governing civil liability in Serbia. According to this law damages are awarded to restore the injured party to the position they were in before the harm occurred. Compensation in these sorts of cases can include either material damages – covering financial losses, medical costs, and lost income – or moral damages – awarded for non-economic harm, such as pain, suffering, emotional distress, or damage to reputation. There is no legal provision for damages that exceed actual losses. Unlike in common law systems (e.g., the U.S.), Serbian courts do not impose additional financial penalties on defendants as a form of punishment.

Serbian law, like that of France, Germany, and Spain, follows a civil law model, where the role of civil litigation is to compensate victims, not to punish wrongdoers. In contrast, punitive damages are a feature of common law jurisdictions, such as the award of damages beyond actual harm. 

In Serba, punishment is viewed as the responsibility of criminal courts, not civil courts. If a company or individual engages in fraud, gross negligence, or harmful conduct, the state prosecutes the wrongdoer through criminal proceedings, imposing fines or imprisonment. For instance, in a notable 2013 case the Belgrade Special Court for Organized Crime sentenced Marko Mišković, son of one of the wealthiest individuals in the Balkans, to 3.5 years in prison and fined him eight million Serbian Dinars (approximately US$ 73,000) for tax evasion and abuse of office. The case also involved other prominent business figures and highlighted issues related to tax evasion and financial misconduct in Serbia. Civil courts, on the other hand, only focus on compensating victims – even if the defendant acted in an especially reckless or intentional manner. Serbian courts have never awarded punitive damages, meaning there is no longer precedent for such claims. Even in cases of egregious corporate misconduct or severe medical negligence, courts have only ordered compensatory damages. Legal scholars and judges in Serbia have historically opposed the introduction of punitive damages, arguing that it would disrupt the predictability and fairness of the legal system. Since punitive damages do not exist in Serbian law, other legal mechanisms are used to handle serious misconduct. If a company knowingly harms consumers (e.g., selling contaminated food, medical malpractice, environmental pollution), criminal charges may be brought against executives or corporate officers. For instance, if a pharmaceutical company sells a dangerous drug without disclosing side effects, company executives could face criminal fines or imprisonment, but victims would only receive compensatory damages in civil court. Regulatory agencies (e.g., Serbian Competition Commission, Ministry of Health) can impose fines and sanctions on companies for harmful or deceptive business practices. For example, if a car manufacturer knowingly sells vehicles with faulty brakes, the government can find the company, but affected customers would only receive compensation for actual losses. While Serbia does not recognize punitive damages, courts may award larger moral damages in cases of intentional or reckless harm. For instance, if a hospital’s negligence leads to a patient’s permanent disability, courts might award a higher amount of moral damages for emotional suffering.

Serbia’s compensatory model ensures victims receive financial recovery but does not deter corporations or professionals from engaging in reckless behaviour. Unlike the U.S., where punitive damages create a strong financial incentive for companies to improve their practices, Serbian companies may see compensatory damages as just another operational cost

Case Study: Medical Negligence and the Potential Role of Punitive Damages

Case: Medical Negligence claim against Medical Group Y

Background:

In 2022, Miss X, a U.S and Serbian citizen residing in New Your, sought medical treatment in Belgrade at Medical Group Y’s gynecology department for infertility and the possibility of undergoing in vitro fertilization (IVF). As part of the standard pre-IVF evaluation, Miss X underwent a Pap smear test, which revealed abnormal results indicative of a precancerous condition. However, Medical Group Y failed to inform Miss X of these results, and the clinic proceeded with the IVF treatments without further investigations. Over several months, Miss X underwent multiple rounds of hormone therapy, egg retrievals, and embryo transfers, unaware of her underlying medical condition. After experiencing abnormal bleeding, Miss X underwent a repeat Pap smear, which confirmed the presence of a severe precancerous condition. Further diagnostic procedures revealed that she had developed malignant cervical cancer, necessitating extensive surgery that rendered her unable to conceive. A subsequent review of her initial medical records revealed that Medical Group Y had been aware of the abnormal test result but failed to disclose them, depriving Miss X of the opportunity for early treatment and possibly preventing the progression of her conduct.

Legal Allegations:

Miss X alleged that Medical Group Y committed medical negligence by:

• Failing to inform her of the abnormal results of her initial Pap smear.
• Proceeding with invasive and costly medical procedures despite the presence of serious medical conduct.
• Misrepresenting her health status, leading her to believe she was medically fit for IVF treatments.

As a result of this negligence, Miss X suffered several physical, emotional, and psychological harm, including the loss of her ability to concise and a significant reduction in her quality of life.  

Case Outcome:

Miss X successfully settled the dispute through negotiations. However, had this case proceeded to trial in the United States, particularly in jurisdictions like New York, the potential damages award could have been significantly higher – potentially reaching $3 million USD. The higher litigation costs, standard of living, and broader application of punitive damages in the U.S. contribute to this disparity.

The Arguments for Punitive Damages in Medical Malpractice Cases:

This case highlights the severe consequences of medical negligence, where the failure to disclose critical medical information led to:

• Unnecessary and harmful medical procedures
• A delay in diagnosis, allowing the condition to worsen
• Irreversible health consequences, including infertility

The fundamental principle of informed consent in medical practice dictates that patients have the right to make decisions about their treatment based on accurate and complete information. Medical Group Y’s failure to disclose critical health information represents clear violations of this ethical and legal obligation.

Under Serbian Law, Medical Group Y would likely be held liable only for compensatory damages, covering medical expenses, lost income, and pain and suffering. However, this case illustrates why punitive damages could be a necessary legal tool – not just to compensate victims, but to deter future instances of gross medical negligence.

Comparative Case Downes v. Carpenter (Pennsylvania, USA):

To further illustrate the differences between U.S. and Serbian legal approaches to medical negligence, we compare Miss X’s case with a similar case in the United States.

Case Background:

In March 2018, Kerri Downes sought medical attention for a breast lump, consulting a nurse practitioner twice. Despite her concerning symptoms, the nurse practitioner misdiagnosed the lump as benign  and failed to order necessary diagnostic imaging, such as a mammogram or ultrasound.

Nine months later, Dowens was diagnosed with aggressive breast cancer that had already spread to her lymph nodes. The delayed diagnosis required extensive and invasive treatment, including a bilateral mastectomy and chemotherapy.

Medical experts testified that had the cancer been detected earlier, Downes could have undergone a less invasive lumpectomy, significantly improving her prognosis.

Legal Outcome:

The court found the nurse practitioner negligent for failing to exercise the appropriate standard of care. The delayed diagnosis directly contributed to the severity of Downs’ condition, resulting in substantial physician and emotional harm.

In contrast to Miss X’s settlements, the jury awarded Dowens $18 million USD, recognizing the severe impact of the delayed diagnosis on her health and well-being. This award included punitive damages, meant to hold the medical provider accountable and deter similar conduct in the future.

The comparison between Miss X’s case and Downes v. Carpenter highlights a crucial difference:

• In the U.S., punitive damages are awarded in cases where negligence is particularly egregious, ensuring that medical providers are held accountable for gross misconduct.
• In Serbia, punitive damages do not exist, meaning that cases like Miss X’s would result only in limited compensatory damages, failing to deter future medical negligence.

The lack of punitive damages in Serbian law raises an important policy question: Should Serbia introduce punitive damages for severe cases of medical malpractice and corporate negligence?

While compensatory damages play a crucial role in addressing harm, they do not provide a sufficient deterrent in cases where a company or institution prioritizes profit over patient safety. Introducing punitive damages in narrowly defined circumstances—such as medical negligence, consumer protection, and corporate fraud—could help strengthen legal accountability and align Serbia with international legal trends.

Similar Comparative Case in the UK: XP v Compensa Towarzystwo SA 2016

Background:

The claimant, identified as XP, was a Polish national who sustained severe brain damage at birth due to medical negligence. XP’s mother received inadequate antenatal care, leading to a failure to detect fetal distress. As a result, XP was born with cerebral palsy, a condition that required lifelong medical care.

The hospital’s failure to conduct proper fetal monitoring and intervene in a timely manner was deemed a serious breach of duty. This delayed diagnosis and intervention resulted in permanent disability and significant lifelong care needs for the children.

Legal Issues and Court Decision:

The High Court of Justice in England and Wales found that the hospital’s negligence directly caused XP’s injuries. The court awarded compensatory damages to cover lifelong medical expenses, pain and suffering, and loss of earnings. The total damages awarded exceeded 7 million pounds GBP, reflecting the severe and lifelong impact of the negligence.

While Serbia and the UK both follow a compensatory approach to medical negligence, there is a stark difference in how damages are calculated.

In XP v. Compensa Towarzystwo SA (2016), a brain damage case caused by medical negligence, UK courts awarded 7 million pounds GBP in damages to ensure lifelong medical care for the victim. However, despite the severity of the case, no punitive damages were awarded – a reflection of the UK’s stance that civil claims should focus on compensation rather than punishment.

In contrast, in the U.S. case Dowens v. Carpenter, the plaintiff was awarded $18 million USD, with a significant portion being punitive damages. This approach serves not only to compensate the victim but also to deter medical providers from reckless conduct.

Serbia’s current legal system aligns more closely with the UK model, offering only compensatory damages and avoiding punitive penalties. However, Serbia’s compensatory awards are much lower, as seen in Miss X v Medical Group Y, where the settlement amounts to only $20,000 USD.

V.  ECONOMIC PERSPECTIVE ON PUNITIVE DAMAGES

The economic analysis of punitive damages focuses on their role in deterrence, cost internalization, and incentives for optimal behaviour. Unlike traditional tort law, which primarily aims to compensate victims, punitive damages serve a broader economic function by ensuring efficient allocation of resources and minimizing accident-related costs.

From an economic standpoint, punitive damages serve as a crucial mechanism when compensatory damages alone fail to deter harmful behavior. This failure arises in several key scenarios.

First, when the probability of liability is less than 100%, some wrongdoers may evade legal consequences due to evidentiary challenges or procedural barriers. In such cases, punitive damages help bridge this enforcement gap by increasing the expected cost of misconduct, thereby reinforcing deterrence.

Second, when the harm caused is difficult to quantify, such as environmental damage or reputational harm, compensatory damages may not fully reflect the true societal impact. By imposing punitive damages, courts ensure that defendants internalize the external costs of their actions, discouraging reckless or exploitative behavior.

Finally, punitive damages play a critical role in cases where the defendant derives an illicit financial benefit. For instance, if a company knowingly sells defective products or engages in deceptive business practices, punitive damages strip away the profit incentive, making unlawful conduct economically unviable.

By addressing these gaps, punitive damages function not only as a corrective economic tool but also as a deterrent against future misconduct, ensuring that wrongdoing is not financially rewarding.

While punitive damages serve as a deterrent against harmful conduct, an economic concern arises when they lead to over-deterrence – where businesses adopt excessively cautious measures or withdraw from socially beneficial activities due to the fear of unpredictable liability. Optimal deterrence is achieved when the cost of preventive measures is equal to the benefit of harm reduction. However, if punitive damages exceed this threshold, businesses may begin to avoid innovation, high-risk investments, or essential industries, fearing disproportionate financial penalties.

To mitigate this risk, courts often impose caps on punitive damages or link them to compensatory damages – for example, limiting awards to twice the amount of compensatory damages. This approach preserves deterrence while ensuring that punitive damages do not stifle economic activity.

From an economic standpoint, punitive damages play a crucial role in addressing market failures, particularly by counteracting “rational apathy” – a situation where victims choose not to pursue litigation because the cost of suing outweighs the expected compensation. One notable example is antitrust law, where U.S. courts allow treble damages (triple the actual loss0 to incentivize plaintiffs to bring claims, thereby ensuring proper market regulation.

Without punitive damages, companies neganing in widespread but low-impact misconduct – such as false advertising or data privacy violations – might never face legal consequences, as individual damages are often too small to justify litigation. Punitive damages help correct this imbalance by making legal action financially viable for affected parties.

A key debate in economic theory revolves around how punitive damages should be calculated. Some argue that punitive damages should be proportionate to the harm caused, ensuring that victims receive fair compensation and that penalties remain reasonable. Others suggest that punitive damages should be calculated based on the profits derived from misconduct, preventing wrongful enrichment and ensuring that illegal activities are never financially beneficial. The choice between these approaches depends on the intended goal of punitive damages – whether to restore victims or to eliminate economic incentives for misconduct. Many jurisdictions use a hybrid approach, considering both harm and wrongful gains to ensure a fair yet effective deterrent.

The global impact of punitive damages reflects broader legal and economic differences between jurisdictions. While the U.S. embraces punitive damages as a mechanism for punishment and deterrence, European countries generally reject them in favor of alternative remedies. These distinctions have significant implications for international trade, corporate liability, and cross-border legal disputes. As globalization continues to evolve, with ongoing efforts to balance deterrence, fairness, and economic efficiency in civil liability frameworks.

VI. PUNITIVE DAMAGES IN INTERNATIONAL ARBITRATION 

Punitive damages in the subject matter of international arbitration faces a lot of misconceptions. Most of the lawyers in the United States believe that punitive damages are easily available in international arbitrations as in their domestic arbitrations. On the other hand international arbitration practitioners have an opposing opinion, due to the fact that in practice international arbitration has rarely awarded punitive damages. These two opposing opinions bring us to a question on if and when punitive damages in international arbitration are available?

Punitive damages in international arbitrations raise a complex conflict of laws questions. There is no written consensus as to how international arbitrators should decide them. 

The question of whether punitive damages can be awarded in international arbitrations involves complex issues related to conflict of laws. There is no consensus on how international arbitrators should address this issue.

Arbitrators can treat the availability of punitive damages as either a procedural or a merits issue. If viewed as a procedural issue, they would refer to the arbitration rules (lex arbitri). If treated as a merits issue, they would consider the law governing the contract (lex contractus).

The lex arbitri refers to the rules that govern the procedural aspect of an arbitration. These rules mainly come from two sources: the parties’ arbitration agreement, including any agreed-upon institutional rules (e.g., the American Arbitration Association or the London Court of International Arbitration), and the arbitration laws of the arbitrator’s seat.

An arbitrator’s authority is generally defined by the parties’ agreed procedural rules, which may specify whether punitive damages can be awarded. Although rare, some parties include specific provisions in their arbitration clause that allow or prohibit punitive damages.

Most institutional arbitration rules do not address remedies, though an exception is the rules or the International Center for Dispute Resolution (the AAA’s international division), which explicitly disallow punitive damages.

If the parties’ procedural rules do not address punitive damages, the arbitrator may look to the non-mandatory provisions of the law of the seat to fill in any gaps. However, most modern arbitration laws do not contain specific provisions regarding punitive damages, so it is important to check whether any mandatory rules at the seat of the arbitration might prevent punitive damages.

In most cases, the substantive law of the dispute is defined by the parties in their contract.

Countries such as the United States, and to a lesser extent other common law jurisdictions, permit punitive damages. However, this is not the case in many civil law countries, where any remedy for a civil wrong is typically compensatory. Some of these countries are outright opposed to punitive damages.

The nature of the claim being arbitrated is also significant. While it is becoming more common to arbitrate both contract and related tort claims, most arbitrators primarily involve contractual disputes. Even in the U.S., where punitive damages are widely available, many states restrict them in contract cases. Similarly, the UK does not allow punitive damages in breach of contract cases.

Typically, parties voluntarily comply with international arbitral awards, avoiding the need for judicial intervention, thanks to the strong international enforcement framework, mainly under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. However, the Convention allows courts to refuse enforcement based on public policy grounds, which can complicate the enforcement of punitive damages.

The nature of the claim being arbitrated is also significant. While it is becoming more common to arbitrate both contract and related tort claims, most arbitrations primarily involve contractual disputes. Even in the U.S., where punitive damages are widely available, many states restrict them in contract cases. Similarly, the UK does not allow punitive damages in breach of contract cases.

Typically, parties voluntarily comply with international arbitral awards, avoiding the need for judicial intervention, thanks to the strong international enforcement framework, mainly under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. However, the Convention allows courts to refuse enforcement based on public policy grounds, which can complicate the enforcement of punitive damages.

An award that includes punitive damages might conflict with the public policy of the jurisdiction where the winning party intends to enforce it. Countries like Germany, Italy and Japan have refused to enforce U.S. judgments that include punitive damages on public policy grounds.

Losing parties can attempt to challenge the enforcement of an award by highlighting potential policy conflicts. Even if punitive damages are legally permitted, they may be difficult to enforce in practice.

VII. GLOBALIZATION AND THE SHIFT IN PUNITIVE DAMAGES STANDARDS

Globalization has made the world’s economies more interconnected. This means that businesses often operate in many different countries, each with its own laws. As multinational corporations have grown and trade and investment have become more global, there’s a need for clear and consistent legal rules. This has affected how punitive damages are viewed and used around the world. Different countries have different opinions on punitive damages. Some countries, like the U.S., accept them, while others, like Germany, France or Serbia do not.

It is interesting to see how differently lawyers in the U.S. and Europe view punitive damages. Punitive damages are payments awarded in court cases, in addition to covering the actual damages, with the purpose of punishing the person who caused the damage. There are a few possible reasons for this difference. One reason might be that in the U.S., there is less emphasis on punishment in criminal law compared to Europe. Another reason could be that in the U.S., the person who wins a court case does not always get their legal costs covered, and they often have to pay a large portion of their winnings to their lawyer. Punitive damages can help to cover these costs and incentivize people to take legal action.

In Europe, on the other hand, there are laws that allow people to recover any gains that someone else made unfairly, even if it was not their fault. This can make punitive damages less necessary. Additionally, European courts often award compensation for emotional distress or other non-monetary losses, which can also make punitive damages less necessary.

Tort law, at its heart, aims to compensate victims, but the why behind this compensation is key. It is not just about handing over money, it is about setting the rules for when someone deserves that money. Think of it like this: if you accidentally bump into someone and spill their coffee, you might apologize and offer to buy them a new one. That’s compensation. But if someone intentionally throws hot coffee on you, that’s a different story, and you might feel they deserve more than just the cost of a new outfit. That “more” is where the ideas behind punitive damages come in.

One way to think about it is from an economic perspective. We want to reduce the total costs of accidents. This includes the costs of preventing accidents, the costs of dealing with the aftermath, and the costs of going to court. Compensation plays a role here, but it is not the whole picture. Punitive damages, on the other hand, act like a warning sign. They say, ‘if you do something really bad, you’ll pay a lot more than just the immediate costs”. This can deter people from acting recklessly in the first place.

Now, different places around the globe have different ideas about how this works. In the U.S., punitive damages are sometimes used to punish bad behaviour and to help cover the victim’s legal costs. This is partly because, unlike in many European countries, the person who wins a court case in the U.S. does not always get their legal fees paid for by the other side. It’s also partly because U.S. laws might place less emphasis on punishment  within its criminal justice system compared to some European countries.

In Europe, however, punitive damages are viewed differently. Many European countries, like Germany, France, and Serbia, do not allow them. They might have other ways of dealing with bad behaviour, like laws that make it easier to recover money someone gained unfairly, even if unintentionally. Plus, European courts often award money for emotional pain and suffering, which can make punitive damages seem less necessary. So, while both the U.S. and Europe went to make things right after something bad happened, they have different ways of getting there. It’s like two different recipes for the same dish – the end result might be similar, but the ingredients and the cooking methods are different. 

Globalization and Cross-Border Legal Issues:

Compared with Western European nations, American law – both at the state and federal levels – typically imposes more severe legal penalties for violations across civil, regulatory, and criminal areas. For instance, in the U.S., tort law has historically allowed victims to recover full damages, including future lost wages and medical expenses, without  considering any compensation they may receive from insurance, which differs from European countries. In contrast, most Western European tort systems determine non-economic damages (such as “pain and suffering”) using established legal guidelines or schedules, rather than relying on jury discretion. These schedules tend to result in lower damages compared to the U.S., leading to higher incentives to file lawsuits in America. Additionally, American law allows entrepreneurial lawyers to consolidate many individual claims into class actions, sometimes seeking millions of dollars in damages. This phenomenon has no equivalent in Europe, where the “tort industry” and large-scale asbestos class actions that have caused the bankruptcy of numerous companies are not present, even though some European countries have a higher rate of asbestosis than the U.S.

No European country has imposed penalties as severe as those in the U.S. for regulatory law violations. In recent decades, criminal prosecution of corporate executives and prison sentences for environmental crimes have been common in the U.S. Laws like the Clean Air Act and the Toxic Substances Control Act permit civil fines of up to $25,000 per day for ongoing infractions. U.S. law also allows for both criminal and substantial civil penalties to be applied for the same violation. Moreover, American criminal law features much harsher punishments compared to Western European legal systems. Notably, the U.S. is the only advanced democracy still practicing capital punishment, and American courts generally issue longer prison sentences for felonies than European courts. U.S. law also enforces harsher penalties for the sale of illegal drugs, and American courts are more likely to impose jail sentences for “victimless” offenses like public disorder, prostitution, or public intoxication.

VIII. CONCLUSION

Punitive damages remain a contentious and evolving aspect of global legal systems. While they serve a vital role in common law jurisdictions – particularly in the United States – as a means of deterrence and punishment, civil law countries continue to resist their application, maintaining a compensatory approach. However, globalization has led to increasing discussions about their potential benefits, particularly in regulating corporate misconduct and ensuring accountability.

As the world’s economies become more interconnected, legal systems must find a balance between ensuring justice for victims and avoiding excessive financial penalties that could stifle economic growth. The disparities in how punitive damages are applied – ranging from outright rejection in jurisdictions like Germany and France to their broad acceptance in the United States – highlight the complexities of harmonizing legal standards. The recognition of punitive damages in international arbitration remains a particularly challenging issue, as enforcement depends on the policies of different legal systems.

Looking forward, there is a growing need for a more nuanced approach that respects the fundamental legal principles of different jurisdictions while acknowledging the necessity of punitive measures in cases of egregious misconduct. Countries that currently exclude punitive damages, like Serbia, may benefit from introducing them in narrowly defined cases, such as severe medical negligence or corporate fraud, to enhance deterrence without disrupting their legal traditions. Ultimately, punitive damages reflect the broader question of how legal systems balance fairness, deterrence, and economic efficiency in an increasingly globalized world.

BIBLIOGRAPHY:

1. Giliker, P. (2020). Tort . 7th ed. England & Wales, Company No.1679046: Thomson Reuters.
2.  Gottlieb, E. and Doroshow, J. (2001). Number 4 : ‘Fighting to protect the right to trial by jury and an independent judiciary for all Americans.’ What you need to know about… PUNITIVE DAMAGES. [online] Available at: https://www.centerjd.org/sites/default/files/ckfinder/userfiles/files/punitives.pdf. 
3. CourtListener. (2025). Coryell v. Colbaugh – CourtListener.com. 1 N.J.L. 77[online] Available at: https://www.courtlistener.com/opinion/8093714/coryell-v-colbaugh/ 
4. Gotanda, J.Y. (2003). Punitive Damages: A Comparative Analysis. [online] p.55. Available at: https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1008&context=wps. 
5. Wilkes v. Wood [1763] Available at: https://press-pubs.uchicago.edu/founders/documents/amendIVs4.html. 
6. LawTeacher. November 2013. Rookes v Barnard – 1964. [online]. Available from: https://www.lawteacher.net/cases/rookes-v-barnard.php?vref=1
7. Cassell & Co. ltd. v. Broome and Another [1972] (House of Lords) Available at: https://uniset.ca/other/rossminster/broome.html. 
8. Gould, I. (2018). Fighting for Access to Justice. [online] Iain Gould – Actions Against the Police Solicitor. Available at: https://iaingould.co.uk/2018/05/15/fighting-for-access-to-justice/ 
9. Broome v Cassell & Company Ltd [1971] (Lord Justice Salmon, Lord Justice Phillimore) Available at: https://vlex.co.uk/vid/broome-v-cassell-company-793407005. 
10. Axa Insurance UK Plc v Financial Claims Solutions Ltd & Ors, [2018] EWCA Civ 1330 | England and Wales Court of Appeal (Civil Division), Judgment, Law, casemine.com. [online] Available at: https://www.casemine.com/judgement/uk/5b35fcdb2c94e01108ddc710. 
11. Legislation.gov.uk. (2014). Copyright, Designs and Patents Act 1988. [online] Available at: https://www.legislation.gov.uk/ukpga/1988/48/section/97. 
12. Judgments – Redrow Homes Limited and Others v. Bett Brothers Plc and Others [1998] (House of Lords) Available at: https://publications.parliament.uk/pa/ld199798/ldjudgmt/jd980122/redrow.htm. 
13. vLex. (2018). Nottinghamshire Healthcare National Health Service Trust v New Group Newspapers Ltd. [online] Available at: https://vlex.co.uk/vid/nottinghamshire-healthcare-national-health-793356857 
14. Rookes v. Barnard (No1) [1964] Available at: https://www.casemine.com/judgement/uk/5a8ff8db60d03e7f57ece89d. 
15. Kuddus (AP) v. Chief Constable of Leicestershire Constabulary [2001] (House of Lords) Available at: https://publications.parliament.uk/pa/ld200001/ldjudgmt/jd010607/kuddus-1.htm. 
16. Susan Rowlands v. The Chief Constable of Merseyside Police [2007] (Lord Justice Ward, Lord Justice Moore Bick, Lord Justice Richards) Available at: https://www.casemine.com/judgement/uk/5a8ff7b660d03e7f57eb16cb. 
17. LawTeacher. November 2013. Thompson v Metropolitan Police Commissioner. [online]. Available from: https://www.lawteacher.net/cases/thompson-v-metropolitan-police.php?vref=1
18. John v. MGN Ltd [1997] (Lord Justice Hirst, Lord Justice Neill, Sir Thomas Bingham) Available at: https://www.casemine.com/judgement/uk/5a8ff87a60d03e7f57ec1185. 
19. Thompson v. Commissioner of Police of the Metropolis [1998] (Lord Justice Auld, Sir Brian Neill) Available at: https://www.casemine.com/judgement/uk/5a8ff8cd60d03e7f57ecd9e0.
20. Judgments – Commissioners of Police for the Metropolis v. Reeves (A.P.) (Joint Administratix of the Estate of Martin Lynch, Deceased) [1999] (House of Lords) Available at: https://publications.parliament.uk/pa/ld199899/ldjudgmt/jd990715/reeves01.htm. 
21. Darren Watson v. Chief Constable of Cleveland Police [2001] (Lord Justice Chadwick, Sir Murray Stuart-Smith ) Available at: https://vlex.co.uk/vid/watson-v-chief-constable-792951257#:~:text=The%20verdict%20was%20for%20%C2%A3,%C2%A316%2C000%20for%20exemplary%20damages. 
22. Liebeck v. McDonald’s [1992] Available at: https://www.tortmuseum.org/liebeck-v-mcdonalds/. 
23. BMW of North America, INC. v. Gore [1996] (Supreme Court of the United States) Available at: https://www.law.cornell.edu/supct/html/94-896.ZO.html. 
24. State Farm Mutual Automobile Insurance Co. v. Campbell [2003] 538 U.S. 408 (Supreme Court of the United States) Available at: https://www.casebriefs.com/blog/law/civil-procedure/civil-procedure-keyed-to-yeazell/incentives-to-litigate/state-farm-mutual-automobile-insurance-co-v-campbell/. 
25. Philip Morris U.S.A v. Williams [2007] 127 S. Ct. 1957 Available at: https://www.casebriefs.com/blog/law/constitutional-law/constitutional-law-keyed-to-chemerinsky/economic-liberties/philip-morris-u-s-a-v-williams/. 
26. Honda Motor Co. v. Oberg [1994] 512 U.S. 415 Available at: https://supreme.justia.com/cases/federal/us/512/415/. 
27. Cooper Industries, Inc. v. Leatherman Tool Group, Inc. [2001] 532 U.S. 424 Available at: https://supreme.justia.com/cases/federal/us/532/424/. 
28. Georges Cavalier. Punitive Damages and French Public Policy. Lyon Symposium, Oct 2007, Lyon, France. Hal-00325829 Available at: https://univ-lyon3.hal.science/hal-00325829/document?utm_source=chatgpt.com
29. Gotanda, J.Y. (2006). Charting Developments Concerning Punitive Damages: Is the Tide Changing? [online] Available at: https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?params=/context/wps/article/1065/&path_info=&utm_ This paper is posted at Villanova University Charles Widger School of Law Digital Repository. http://digitalcommons.law.villanova.edu/wps/art65. 
30. Catala, P., Cartwright, J. and Whittaker, S. (2007). Proposals for Reform of the Law of Obligations and the Law of Prescription English translation by. [online] Available at: https://www.justice.gouv.fr/sites/default/files/migrations/portail/art_pix/rapportcatatla0905-anglais.pdf?utm 
31. Parker, M. (2025). Changing Tides: the Introduction of Punitive Damages Into the French Legal System. [online] vLex. Available at: https://law-journals-books.vlex.com/vid/changing-tides-the-introduction-935404034?utm 
32. French Supreme Court Rules on Punitive Damages [2010] Available at: https://conflictoflaws.net/2010/french-supreme-court-rules-on-punitive-damages/comment-page-1/?print=pdf. 
33. Ungerer, J. ‘German Federal Court of Justice, Judgment of 4 June 1992, Case IX ZR 149/91 (BGHZ 118, 312) (1992): German Law’s Dilemma with Punitive Damages’. [online] Oxford University Research Archive. Available at: https://ora.ox.ac.uk/objects/uuid:30e5b511-0d5c-497b-b9de-6381e185c44d
34. Tolani, Madeleine (2011) “U.S. Punitive Damages Before German Courts: A Comparative Analysis with Respect to the Ordre Public,” Annual Survey of International & Comparative Law: Vol. 17: Iss. 1, Article 9. Available at: http://digitalcommons.law.ggu.edu/annlsurvey/vol17/iss1/9
35. Volker Behr, Punitive Damages in American and German Law – Tendencies towards Approximation of Apparently Irreconcilable Concepts, 78 Chi.-Kent L. Rev. 105 (2003).Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol78/iss1/6 

36. Ballester Pastor, M.A. (2016). Reparation and penalties in discrimination cases. [online] Available at: https://www.era-comm.eu/oldoku/Adiskri/04_Remedies/BALLESTER_116DV37_EN_Paper.pdf?utm_. 
37. Behr, V. (2003). Punitive Damages in American and German Law -Tendencies towards Approximation of Apparently Irreconcilable Concepts, 78 Chi.-Kent L. [online] Rev, p.105. Available at: https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3389&context=cklawrevie w [Accessed 3 Jun. 2020].
38. Ricken, K. (2025). Is ‘the wind of change’ in German antitrust law about to come? [online] Antitrustpolitics.com. Available at: https://antitrustpolitics.com/2025/01/31/is-the-wind-of-change-in-german-antitrust-law-about-to-come/?utm_. 
39. Commission of the European Communities (2005). Green Paper, Damages actions for breach of the EC antitrust rules. [online] p.12. Available at: https://op.europa.eu/en/publication-detail/-/publication/480b628c-5a17-4669-8dde-91b28e76e43b/language-en?utm_. 
40. www.paragraf.rs. (n.d.). Zakon o obligacionim odnosima. [online] Available at: https://www.paragraf.rs/propisi/zakon_o_obligacionim_odnosima.html. 
41. OCCRP (2016). Serbia: Son of Wealthy Businessman Jailed in Tax Fraud. [online] OCCRP. Available at: https://www.occrp.org/en/news/serbia-son-of-wealthy-businessman-jailed-in-tax-fraud. 
42. Republic of Serbia, Commission for Protection of Competition (2025). Commission for Protection of Competition. [online] Commission for Protection of Competition. Available at: https://www.kzk.org.rs/en/. 
43. James, M. (2023). Ten of the Largest Medical Malpractice Verdicts of 2022. [online] JD Supra. Available at: https://www.jdsupra.com/legalnews/ten-of-the-largest-medical-malpractice-2980009/. 
44. Rimmer, H. (2016). XP v Compensa Towarzystwo SA v Przeyslaw Bejger [2016] EWHC 1728 (QB). [online] Available at: https://www.3pb.co.uk/content/uploads/xp_v_compensa_towarzystwo_sa_v_przeyslaw_bejger_-_hugh_rimmer_-_august_2016.pdf. 
45. Visscher, L. (n.d.). ECONOMIC ANALYSIS OF PUNITIVE DAMAGES. [online] Available at: https://repub.eur.nl/pub/31477/punitive%20damages%20final.pdf  
46. MoloLamken LLP (2021). Are punitive damages available in international arbitration? [online] Mololamken.com. Available at: https://www.mololamken.com/knowledge-are-punitive-damages-available-in-international-arbitration 
47. Helmut Koziol, Punitive Damages – A European Perspective, 68 La. L. Rev. (2008) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol68/iss3/3