International Tribunals

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Against DCF valuation in ISDS: on the inflation of awards and the need to rethink the calculation of compensation for the loss of future profits

One of the most noticeable facts in recent ISDS is the spectacular inflation of compensation awarded to investors. The overall increase in the amounts is well documented. Of the (now more than) 50 known awards in excess of USD 100 million, none was rendered before 2000 and only 11 before 2010. What is most attention-grabbing, however, are the dizzying multi-billion numbers reached in some extractive industry cases (e.g. $8.7 billion in ConocoPhillips v Venezuela, $6.6 billion in P&ID v Nigeria, $5.9 billion in Tethyan Copper v Pakistan). These awards have made headlines. More importantly, they impose an impossibly heavy burden on the finances of the States concerned. What explains this trend? The single most important factor is probably the now widespread use by tribunals of the DCF (discounted cash flows) valuation method to determine the value of the investment affected by the State’s breach. It consists of estimating the worth of a business as equal to the present value of the income it is expected to generate…

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Georgia v. Russia No. 2: The European Court’s Resurrection of Bankovic in the Contexts of Chaos

Last week the Grand Chamber of the European Court of Human Rights delivered its judgment in the second interstate case brought by Georgia against Russia (no. 38263/08), dealing with the August 2008 conflict between the two states (see my brief preview here ; for a summary of the judgment see the Court’s press…

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Monitoring provisional measures at the International Court of Justice: the recent amendment to the Internal Judicial Practice

On 21 December 2020, the International Court of Justice (ICJ) announced the adoption of a new Article 11 of its Internal Judicial Practice. The new text provides for the creation of an ad hoc committee where the Court orders provisional measures, with three judges, to assist the monitoring of their implementation. The ad hoc committee is meant to…

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ICJ Jurisdiction over Obligations to Share Information with the WHO

It has been almost a year since the World Health Organization (WHO) declared the Covid-19 outbreak a public health emergency of international concern (PHEIC) and many parts of the world are still suffering deaths, disease, and lockdowns despite the advent of vaccines. Yet little has happened in terms of international responsibility, even if the blogosphere has produced…

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The Inter-American Court of Human Rights and the Quest for Equality: The Fireworks Factory case

On 26 October 2020, the Inter-American Court of Human Rights (IACtHR) published its judgment in the Case of the Workers of the Fireworks Factory in Santo Antônio de Jesus and their Families v. Brazil (Fireworks Factory case). The dispute concerned the Brazilian state's responsibility for the events surrounding an explosion in a fireworks factory in the…

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