• Tutoriel vidéo

Auteur

M. Fabian Zetina

Associate - GST LLP

Editors
See all

Valuation Date

I. Definition

1.

The valuation date (also referred as “Effective Date” or “Appraisal Date”) has been defined as “the specific point in time as of which the valuator’s opinion of value applies”.1

2.

It is known that the determination of the valuation date of an investment can have a considerable impact for the valuation of compensation and damages claim. How it is fixed is often the subject of great debate between the parties, their experts and the tribunal.2 In some cases, tribunals have recognized their power to decide on the date that they deem appropriate.3

II. How international tribunals fix valuation dates

3.

Many of the factors related to the valuation date will depend primarily on the kind of event that gave rise to the claim (expropriations, violations of investment treaty provisions, and/or breaches of contract), on the applicable law4 and the type of measures (if the breaches are the consequence of cumulative measures, for example).5

A. Lawful expropriation

4.

In lawful expropriations, the practice of international tribunals has varied depending on the circumstances of the case. (See further Expropriation, Section III)

5.

Tribunals have frequently considered the valuation date as the date of the expropriation or respective State act.6

6.

If the expropriation only becomes effective later, the valuation date would be consider the date when the expropriation became publicly known or took effect.7 In this case, tribunals have also taken into account political, social, and economic changes up until the expropriation.8

7.

In other cases, the valuation date has been set just before the expropriation took place or before the date at which the decision to expropriate became publicly known.9

B. Unlawful expropriations

1. General considerations

8.

Though most bilateral investment treaties provide the valuation conditions and standards for expropriations in general, some tribunals have ruled that these provisions do not apply to an unlawful expropriation.10 Contrary opinion has also been proposed and the case law is not settled.11 In cases where tribunals have made such distinction, they have applied standards of reparations under international law.12 In Factory at Chorzow, the Permanent Court of International Justice ruled that in order to come as close as possible to restitutio in integrum, the experts should determine the financial situation the enterprise would have had in at the date of the judgment, if the expropriation had not taken place.13 Therefore, for the application of this exercise, the value should be assessed at both the date of the expropriation and the date of the judgment,14 sometimes to a date fixed before the materialisation of the expropriation.15

9.

Based on the above, adjudicators are split and have adopted two different views:

  1. The first view builds off Factory at Chorzow and supports the argument that the valuation date can be moved to the date of the award. Here, tribunals have chosen the date of the judgment as they have found that the value of the expropriated property increased between the expropriation date and the judgment date or at least accepted the difference and awarded damages incurred after the expropriation date.16 Tribunals have then taken into consideration ex poste information.17 
  2. Other tribunals have found that the date of expropriation should still be considered as the valuation date in some instances18 because valuating at the date of the judgment might lead to arbitrary decisions,19 meaning that, under Chorzów, the valuation date would not necessarily always automatically be replaced by the date of the award. This has led tribunals to reject ex poste information for valuation purposes.20

2. Valuation date for indirect expropriation

10.

In cases of indirect expropriations, fixing a valuation date is more difficult as the expropriation takes place through a combination of acts and over a longer period of time.21

11.

Tribunals have varied their practice in different cases. They have sometimes fixed the valuation date at the stage when the deprivation of property rights was irreversible22 or at the date of the taking the property to avoid reducing the amount of compensation.23

12.

Furthermore, in cases of creeping expropriations, the articles on State Responsibility provides a solution for the problem of the date of the wrongful act, which distinguishes the time between the occurrence of the unlawful act and the duration of the breach.24 By application of Article 15, tribunals need to decide which action or omission is sufficient to constitute the wrongful act.25

C. Fair and equitable treatment

13.

Regarding fair and equitable treatment, some tribunals have considered that the full reparation principle entails that the proper valuation date is the date of the first characterized violation of the standard.26 Other tribunals chose the date which corresponds to the culmination of the events characterized as a breach of FET.27 

Bibliography

Burgstaller, M., and Ketcheson, J., Should Expropriation Risk Be Taken into Account in the Assessment of Damages?, ICSID Review - Foreign Investment Law Journal, 2017, pp. 193 – 215.

Lavaud, F. and Recena Costa, G., Valuation Date in Investment Arbitration: A Fundamental Examination of Chorzow’s Principles, Journal of Damages in International Arbitration, 2016, pp. 33-72.

Marboe, I., Calculation of Compensation and Damages in International Investment Law, 2nd ed., 2017.

Sabahi, B., Rubins, N. and Wallace Jr., D., Investor-State Arbitration, 2nd ed., 2019.

International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001.

Sélectionner un mot clé :
1 /

Accédez instantanément à la jurisprudence, aux traités et à la doctrine les plus pertinents.

Commencez votre période d'essai

Déjà enregistré ?