12 November 2021
The Note rightly highlights the complexity of current practice, the rapid increase in the amounts of compensation, discrepancies between amounts claimed and awarded, and the divergence in expert calculations of damages, among other issues. [...] Restricting the use of Discounted Cash Flow (DCF) The Note suggests that work be undertaken to address the “valuation method to be applied by the tribunal, in particular cases in which the application of the DCF method is appropriate” (paragraph 70(ii)). [...] As defined in the ILC Articles, restitution refers to remedies that re-establish the situation that existed prior to the breach of international law, through the specific performance of an action by the state, such as the return of an asset taken or the reversal of a measure. [...] We welcome the suggestions in the Note for the Working Group to consider work on the use of valuation methods, on “the capping of compensation, for instance to the amount actually invested by the investor”, and on integrating contextual factors in the calculation of compensation (paragraphs 74–75). [...] The Note refers to Members’ ongoing discussion regarding “the binding interpretation of provisions in investment treaties on the assessment of damages as well as the calculation of the compensation, by the Parties to the treaty or by commissions formed under the treaties” (paragraph 89).