23 March 2018

Last night, Liz Perks spoke at a seminar at Landmark Chambers on the latest developments and key themes in the assessment of damages in investment treaty awards.

Liz gave her views, as an expert, alongside James Neill, (Barrister, Landmark Chambers), Jeffrey Sullivan (Partner, Gibson Dunn) and Janet Walker (Arbitrator, Outer Temple Chambers).  The diverse panel offered the audience the opportunity to hear from the speakers on their area of interest and expertise, and their different perspectives on the issues being discussed.

Liz spoke on the assessment of fair market value, discussing when fair market value is seen in investment treaty arbitrations, what it means and how it is assessed.  She then presented a mini case study and the findings of Haberman Ilett’s research on ICSID awards in relation to investment treaty arbitrations.  The research suggests that, where damages are awarded in an ICSID case, on average 33% of the claimed amount is awarded.  It also suggests that the income approach is gaining increasing acceptance from Tribunals, but that Tribunals seem to appreciate experts giving them a choice of approach.

The talks triggered an interesting debate, which gave the speakers the opportunity to hear from the audience and to discuss the key issues more fully as well as to address points from members of the audience.  The panel fielded queries on the use of country risk premiums in discount rates and whether this allows states to benefit from their wrongful acts, and the interpretation of the foreseeability requirement in relation to damages.

We hope that the audience found the evening as enjoyable and informative as we did.  As experts, seminars such as this provide a great opportunity for us to hear different views on issues and developments within the field of arbitration, and they allow us to consider how to shape our work and our role within arbitration going forward.

Our thanks to Landmark Chambers for hosting, to the other speakers and to Lord Carnwath for chairing the event.

By Gary King, Senior Associate