Recently published arbitral awards provide insight into Tribunals’ reasoning when the quantum of a claim is challenged for being too uncertain or speculative. Typically, Claimants will not only claim costs incurred up to the date of the breach or expropriation, but they will also claim compensation for future profits in a but-for scenario. However, a…
On December 21, 2016, the Tribunal in Hochtief v Argentina issued an award on damages against Argentina in an arbitration brought under the Argentina-Germany BIT. The Claimant had alleged multiple treaty breaches by Argentina, arising out of the 2000 economic crisis, and originally sought US$ 54 million in damages. Although the Tribunal found that Argentina…
The selection of an interest rate to apply to an arbitral damages award can be an important determinant of the total award. For example, prejudgment interest added 26% to damages across 63 ICSID awards since 2000. Consistent with this notion, many international investment treaties specify claimants be compensated at a reasonable or normal “commercial rate.”…
This is the third and final article in a three-part series summarising the main valuation methodologies used for the purposes of determining economic loss. In parts one and two, I provided an overview of the market-approach and income-based methodologies. I now conclude by reviewing the asset-based approach. To what extent, if any, is the sum…
This is the second article in a three-part series summarising the main valuation methodologies used for the purposes of determining economic loss. In part one, I provided an overview of the market-approach methodology. I now turn to the income-based approach, focusing on the discounted cash flow (DCF) methodology. In my previous article, I noted that…
A key part of an expert witness’s role involves explaining, in as clear terms as possible, complex accounting, economic and valuation concepts, to arbitration lawyers who may be less familiar with or even daunted by the world of finance. My suspicion is that expert witnesses could do much more to assist the arbitration community in…
“…there are known knowns; these are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns – the ones we don’t know we don’t know” Former US Defense Secretary Donald Rumsfeld. One of…
The controversial topic of third-party funding in international arbitration continues to generate much debate across the conference circuit and in the legal press. On the one hand, supporters claim that such third-party funding arrangements improve access to justice since they allow otherwise cash-poor claimants to pursue meritorious claims; on the other, detractors believe that third-party…
