ERISA’s underdeveloped civil enforcement mechanism, section 502(a), has generated extensive litigation. Judicially crafted strictures on the relief available to participants have arisen with respect to standing, scope of judicial review, causes of action, and remedies. While the Supreme Court has held those with a colorable claim to benefits have standing, precisely what that means has proven elusive. Judicial review of denied claims is strictly constrained. Court access requires that participants have exhausted internal review processes, and if the plan grants the administrator discretion to determine eligibility for benefits or construe the plan’s terms (which is virtually always), judicial review is restricted to a cursory scan for abuse of discretion. Deferential review survives even if the administrator is conflicted: lower courts are instructed to consider the conflict merely as one factor in and overall assessment of whether discretion was abused. Finally, the Court has held that ERISA does not permit the full panoply of damages one would expect in the aftermath of contractual or fiduciary breach. Consequential damages are unavailable for denied claims, and equitable relief for fiduciary breach is limited to what was typically available in equity in the days of the divided bench.

The damages dealt with in this chapter have a vindicatory aspect, in that the court recognises the importance of the plaintiff’s rights by making an award.Exemplary damages explicitly punish the defendant for the wrong in question. They are also said to validate the plaintiff’s feelings of hurt and anger arising from the contumelious nature of the defendant’s wrong.

Aggravated damages aim to compensate the plaintiff for distress caused by the nature of the defendant’s breach. They have been said to protect the dignitary interest of the plaintiff, and/or to be a form of damages for distress.

Vindicatory damages are a novel head of damages said to allow for a substantial award of damages in the absence of loss if a right has been violated. It has been argued that they should be extended to breaches of private law rights in some instances. As we will see, the High Court of Australia has argued against these awards being a category of their own in Australia.

Host states are waking up to the power of pleas based on contributory fault or investor misconduct in investment arbitrations. The host state may have flagrantly breached the applicable investment treaty, but it can effectively be saved if it can adduce evidence of the investor’s wrongdoing. ‘Saving’ might mean that the arbitral tribunal lacks jurisdiction, the investor’s claim is inadmissible, the host state’s liability is eliminated, or the remedies that the host state must make good on are substantially reduced. The question that this chapter tackles is: what is risky or wrongful conduct on the part of the investor relevant to jurisdiction, admissibility, liability, or remedies? The significance is not born out of an obsession for order, but a recognition that decisions on these questions have different legal consequences. To resolve the question, international investment law is conceived as a schematic through which the various pleas arising out of an investment dispute must navigate. In detailing this schematic, the proper scopes of jurisdiction, admissibility, liability, and remedies are clarified. What this reveals is that ‘defences’ are distinguishable from other types of rules and risky or wrongful conduct attributable to the investor is generally relevant to liability.