International Arbitration and EU Law
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International Arbitration and EU Law

Edited by José R. Mata Dona and Nikos Lavranos

This book examines the intersection of EU law and international arbitration based on the experience of leading practitioners in both commercial and investment treaty arbitration law. It expertly illustrates the depth and breadth of EU law’s impact on party autonomy and on the margin of appreciation available to arbitral tribunals.
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Chapter 17: DAMAGES IN INVESTMENT TREATY ARBITRATION

Herfried Wöss and Adriana San Román Rivera

Abstract

The Chapter on Damages in Investment Treaty Arbitration briefly discusses the function and role of international damages law. It also refers to its historic development in order to answer the question whether Chorz—w may be explained only from its particular historical circumstances or whether it stills plays a relevant role today. The authors examine the full reparation principle and what it means in the light of the Chorz—w formula, as well as the Fair Market Value measure of damages in investment arbitration. They also analyse the date of valuation, the use of hindsight information and the role of interest when updating or discounting cash flows in order to valuate damages, as well as novel valuation approaches. Of importance in this Chapter is the discussion of new aspects such as the need to define the legality threshold in indirect expropriation and FET violation for the purpose of the application of the but-for premise, the implications of the difference between legal and illegal expropriation when valuating damages, the notion of the contract as investment and the piercing of the veil of contractual liquidated damages clauses in investment arbitration.

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