“Missing Links” in Investment Arbitration: Quantification of Damages to Foreign Shareholders

In: The Journal of World Investment & Trade
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  • 1 University of Copenhagen, LL.M. in International Dispute Settlement (Graduate Institute, University of Geneva)

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This article focuses on the tensions between law and economics which inevitably occur in connection with the quantification of damages in international investment disputes between foreign shareholders (foreign investors) and host states. In this context, four contemporary approaches to quantification are addressed. These concern 1) full loss of the investment or invested amounts, 2) lost share value, 3) lost dividends, or 4) discretionary compensation. It is analyzed to what extent these approaches comply with the fundamental, legal principles which are in play in most investment disputes today, that is a) identification of the protected investment, b) recognition of the corporate entity, c) “full reparation” of injury, d) causation and certainty of losses, and e) avoidance of double recovery. It is demonstrated that each approach may pose challenges in respect of one or more of these legal principles.

  • 59)

    Ibid., p. 260 and “Glossary for Terms for International Valuation Standards” in IVSC, International Valuation Standards 2007. “Book value” is not defined in the current “2011 International Valuation Standards”, infra note 108.

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