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
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
B. Unlawful expropriations
1. General considerations
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
Based on the above, adjudicators are split and have adopted two different views:
2. Valuation date for indirect expropriation
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
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
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
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.
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.
Déjà enregistré ?