Abstract
Abstract The present article seeks to critically rethink the key issue of how compensation and damages are and should be calculated in the context of investor-State arbitration – the ‘quantum’ question, as is commonly referred to in arbitral practice. We will make three main claims: first that such calculations are premised on a fundamental consensus that presents the work of arbitrators in this area as essentially uncontroversial fact-finding operations and has led to an inflation of awards, second that this consensus is in reality built on a series of myths and unjustifiable assumptions, and third that the realization that this is so should lay the ground for more acceptable calculations.
Highlights
The present article seeks to critically rethink the key issue of how compensation and damages[1] are and should be calculated in the context of investor-State via free accessMarzal arbitration – the ‘quantum’ question, as is commonly referred to in arbitral practice
The lack of attention paid to the calculation of compensation and damages in investor-State dispute settlement (ISDS) was still the object of a common complaint.[2]
The analysis showed, unsurprisingly, that the picture was extremely complex with regards to compensation for expropriation, and that the FMV standard was far from universal
Summary
The present article seeks to critically rethink the key issue of how compensation and damages[1] are and should be calculated in the context of investor-State via free accessMarzal arbitration – the ‘quantum’ question, as is commonly referred to in arbitral practice. The present article seeks to critically rethink the key issue of how compensation and damages[1] are and should be calculated in the context of investor-State via free access. That such calculations are premised on a fundamental consensus that presents the work of arbitrators in this area as essentially uncontroversial fact-finding assessments, and has the effect of justifying a general inflation in the amounts awarded. That this consensus is in reality built on a series of myths and unjustifiable assumptions.
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