In its Award, the Tribunal dealt at length with the Claimants' arguments concerning the cut-off date for calculating accrued losses. Its third consideration in determining the appropriate method for the quantification of compensation, at paragraphs 92 to 95, reads as follows:
92. Thirdly, as to the date for calculating accrued losses, Claimants contend that the cut-off date should be December 2006, the date of submission of their comments on Procedural Order No. 6. According to Claimants, there is "no justification" for using 28 February 2005 as the cut-off date once evidence is produced that "the breach has continued and is continuing". Claimants claim to have produced this evidence by submitting the witness statement of Mr. Enrique Flaiban who testified on the status of the Licensees' tariff levels.
93. The Tribunal agrees with Claimants that, if evidence is produced, damages should be awarded. However, Claimants forget that, for evidence to be considered by this Tribunal, Argentina must be given the opportunity to react to such evidence. The Respondent did not have this opportunity with regard to Mr. Flaiban's witness statement.
94. The Tribunal decided during the Hearing that no further submissions or evidence would be presented after 28 February 2005,37 the date of the PHB in which conclusive remarks concerning each parties' case were to be exposed. The Claimants themselves opposed the introduction of new evidence by Argentina after this date.38
95. Respect for due process obliges this Tribunal to only consider evidence that the other side has been able to test. On the basis of this evidence, the Tribunal assesses Argentina's continuous breach of its obligations between 18 August 2000 and 28 February 2005. Any event occurring after 28 February 2005 that could be seen to remedy the Respondent's breaches and affect the calculation of damages (like the progress on the renegotiation process) is not considered in the present procedure, as indicated in Procedural Order No. 6.
See Hearing in the merits, January 29, 2005, Hearing Transcripts, vol. 7, at 1616-24
Argentina attempted on three occasions to introduce evidence regarding the alleged progress in the renegotiation process (Letters of 2 September 2005, 12 January 2006 and 11 April 2006). The Claimants opposed to the Tribunal's acceptance of such evidence (Letters of 14 September 2005, 24 January 2006 and 27 April 2006). The Tribunal, based in its previous decision that no further submissions be filed, rejected the introduction of the evidence (Letters of 5 October 2005, 30 January 2006 and 9 May 2007).
Compañía de Aguas del Aconquija S.A. and Vivendi Universal v. Argentine Republic (ICSID Case No. ARB/97/3), Decision of the ad hoc Committee on the Request for Supplementation and Rectification of its Decision Concerning Annulment of the Award, ¶11 (28 May 2003).