The Billion-Dollar Questions: Unresolved Quantum Issues in International Arbitration

Presentation

Where there is no clear consensus among arbitrators and frequent disagreements between opposing experts there can be substantial impact on damages awards. This panel will explore three of the biggest open questions affecting quantum in international arbitration.

These areas include:

1. Choice of valuation methodology. Particularly for early-stage, capital-heavy development projects when is it appropriate to use a lost-profit (DCF, market, etc…) versus a sunk-cost approach. What criteria and thresholds have tribunals used previously?

2. Comparables. Past transactions versus public valuations. When is a transaction or company considered comparable? How do experts define peer-group comparables? When do past transactions on the same asset qualify as comparable? How relevant are past bids for the same asset?

3. Calculation of interest. Choosing between ‘risk-free’, “commercial” (e.g. SOFR+), cost of equity / WACC. Compensatory versus punitive character of (particularly post-award) interest. Decisions on interest in claims that were brought with significant delays or stayed for a long time. Pre-award interest and post-award interest.

The discussion will be concluded with a Q&A segment, with guests invited to continue the conversation with the panel and other delegates over lunch.