Furthermore, there may be a difference between "compensation" as the consequence of a legal act and "damages" as the consequence of the committing of a wrongful act.10 This distinction has been noticed by various tribunals.11 If FMV is not the proper measure of compensation for unlawful expropriation, it is a fortiori not appropriate for breaches of other Treaty standards.
"A calculation will be made of the dividends that would or could have been generated without any change in the tariff system. Dividends received by the Claimants will be subtracted from this figure, after which the damages suffered during the State of Necessity will be subtracted from this amount."
• The maintenance of the tariff regime which included the PPI adjustment, the five-year adjustments and the calculation of the tariff in dollars before its conversion into pesos (pesification).
• The point of departure for the analysis of each company is the annual average dividend during the period preceding the State of Necessity.25
• Payment of annual dividends is made every six months maintaining the previous company practice.
• Effective PPI adjustments in January and July of each year are based on the U.S. Bureau of Statistics.
• The five-year review that may have been made during the second half of 2002 would have repeated factor "X" of the adjustment made in 1997 for each company.
• Dividends would have been affected by fluctuations in the peso in relation to the dollar.
• Dividends actually paid by the companies are considered on the dates and in the amounts established in the public records and in the financial bylaws.
• The percentage of LG&E’s shares in gas companies has remained constant.
• Each company continued to apply the same dividend policy as before August 2000.
• Losses incurred during the State of Necessity (1 December 2001 -26 April 2003) are to be subtracted.
Based on the foregoing considerations, the Tribunal has used the following figures for the quantification of compensation:
|Total PPI adjustments (a)||$ 1.5m||$ 1.4m||$ 3.2m|
|Total 5-year adjustment (b)||$ -0.6m||$-0.6m||$ -1.2m|
|‘But for’ dividends Aug. 2000- Feb. 2005 [including a and b above]||$ 117.6m||$ 112.3m||$ 247.0m|
|Actual dividends paid Aug. 2000-Feb 2005||$ 41.9m||$ 38.1 m||$ 69.6 m|
|Average annual growth rate of gas volumes [2000-2005]||4.21%||3.32%||4.22%|
Consequently, the Tribunal establishes that the actual loss incurred by Claimants is quantified as follows:
|Cuyana (million US$)||Centro (million US$)||GasBan (million US$)||Total (million US$)|
|LG&E dividends loss||10.9||34.0||34.8||79.7|
|Minus; Loss suffered during the period of emergency||-4.3||-12.6||-11.9||-28.8|
a. Within 30 days of the date of dispatch of this Award, Argentina shall pay to LG&E, the sum of US$57,400,000.00, as well as compound interest on that amount at a rate of six-month U.S. Treasury bills until the date of payment in full of this Award.
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