The Case for the Ex-Post Valuation of Damages Under International Investment Law

Abstract

Abstract This article addresses the question of the date of valuation and whether and how post-breach developments and information can and should be taken into account under international investment law. We will first show that, contrary to the claim that is sometimes made in arbitral practice and commentaries, tribunals approach these issues in four different ways. We will then critically analyse each one of these approaches. Our conclusion will be that, for unlawful expropriations and other international wrongs, the best approach is the one whereby damages are valued as at the date of the award or a proxy date for it and based on the information available at that time, provided it is sufficiently reliable. We will notably explain how this conclusion tallies with the Permanent Court of International Justice’s judgment in Factory at Chorzów, considered by many the cornerstone of the international investment law of damages.