Under international investment law, States should compensate the investor for the damages incurred in connection to an international investment obligation breach.1 In determining the damages to be awarded, the investment tribunal should primarily look at whether the treaty itself contemplates a given compensation standard.2 If the treaty is silent, then the investor is owed damages in accordance with the customary international law principle of “full reparation”.3 This value can be calculated in different ways, but the income approach is the most common, and widely accepted, method to do so.4 This approach assumes that the value of an asset is equivalent to the present discounted value of its future cash flows.5 These anticipated future cash flows that the investment would have produced but-for the State’s breach are discounted taking into account the future risks and costs of capital.6 This method of valuating an asset’s income is referred to as “Discounted Cash Flow” (“DCF”) and is regularly applied by investment arbitration tribunals.7
II. The discounted cash flow valuation method
Generally, as acknowledged by the CMS v. Argentina tribunal, there are two main ways to calculate a company’s discounted cash flows:9
“One can start computations with the cash flows to the firm debt repayments, discount such flows at the weighted average cost of capital (the ‘WACC’) and add the discounted cash flows to the firm to establish its value; then, the value of debt is subtracted and the residual value is the value of equity (‘the indirect equity value’). Alternatively, one can compute first the cash flows to equity (cash flows from operations, minus interest and debt repayments), discount them at the cost of equity (‘COE’) and add the discounted cash flows to equity to establish the value of equity (‘the direct equity value’); then, one adds the value of debt to establish the value of the firm…”
The WACC model has been the most heavily relied upon method of discounting cash-flows.10 In what follows, we explain in further detail a simplified step-by-step algorithm to compound the discounted cash-flows using the WACC approach (although a similar method can be used if one were to follow the COE alternative):11
More recently, the tribunal in Tethyan Copper Company v. Pakistan has adopted what it has called a “modern DCF valuation method.”17 The main difference between this “modern DCF” and the traditional discounted cash flow lies in that the former introduces risk discount factors to each element of the cash flow instead of adopting an overall risk discount rate to the asset’s entire cash flow.18 This means that steps (b) and (c) of the algorithm described above will need to be revised to first discount the risk factor of every cash-flow and then adjust for the cost of capital.
III. Applicability of the DCF model
First, damages arising from any breach of an international investment agreement affecting an income producing asset - such as a violation of national treatment, most-favoured nation, fair and equitable treatment, and unlawful expropriation - could be quantified using the discounted cash flow method.20 Indeed, the DCF, being a but-for method for calculating damages, is an appropriate method to put the investor in the position it would have been had it not been for the State’s unlawful conduct in accordance with the “full reparation” customary rule. Consequently, investment tribunals have found that the DCF method is consistent with the Chorzow principle.21
However, in cases of “lawful expropriation”, i.e. when the expropriation was carried out for a public purpose, non-discriminatorily, in accordance with due process, and against the payment of compensation, investment agreements usually require “adequate” compensation.22 This does not always coincide with “full compensation.”23
Second, tribunals have not been inclined to follow the discounted cash flow model in cases where there is less certainty regarding an investment’s future profits.24 Conversely, where there is more predictability and stability of future cash flows, tribunals have followed the discounted cash flow method even if the project is in its early stages.25
Some tribunals have attempted to provide guidelines on when is the discounted cash flow model applicable. Although these do not carry precedential value, they provide useful insights onto tribunals’ “rules of thumb”. For example, the Russoro v. Venezuela tribunal determined that in deciding whether it should apply the discounted cash flow model it would look at some or all of the following factors:26
Many of the factors considered by the Rusoro tribunal have focused on the historical data of the asset in question. Conversely, some other tribunals have looked at the probability of securing future incomes.27 For instance, the ICC arbitration tribunal in the EMG v. Egyptian General Petroleum case focused on the reasonableness of the foreseeable future income of the asset in question: “JWC [the Respondent] has, additionally, raised an objection as to the accuracy of a DCF model, given the lack of record of EMG’s profitability. The Tribunal sees no reason for concern. The important fact is not whether EMG can prove its profitability in the past, but rather whether it is reasonable to presume that, were it not for EGAS’ wrongdoing, it would have obtained a foreseeable stream of income in the future. In the case of a 15 year-long gas supply deal, secured by an interlocking mesh of contracts (…) the Tribunal entirely satisfied of the reasonableness of such presumption.”28
Given that investment arbitration tribunals are increasingly relying on the discounted cash flow method,29 it is important for practitioners to become acquainted with the way in which the method works since a slight modification of one of its parameters can completely alter the final number. Moreover, the proper application of the discounted cash flow model will rest in the factual underpinnings of the case and the available economic information of the asset in question.
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