The rapid development of investment arbitration, especially during the last two decades, has been followed by extensive academic research and scholarly writings in this field. However, these have focused mainly on the legal documents that allow investment arbitration, grounds for the claims brought before investment tribunals, jurisdiction of arbitral tribunals, remedies available to foreign investors, and other similar topics. The calculation of the applicable monetary compensation payable to investors and the assessment of the value of investments have not received extensive attention in such writings even though the main point of interest for the parties involved in investment arbitration usually consists in how much they can gain (in the case of investors) or how much they can lose (in the case of host states) as a result of the arbitration. As the monetary compensation payable to investors as an outcome of investment arbitrations is directly linked to the value of the investments that are negatively affected by host states, the assessment of the value of investments at the centre of arbitral disputes is important for both investors and host states. Given its importance, the present research examines the valuation approaches and methods which may be employed in investment arbitration in order to assess the value of investments. The thesis focuses on the main approaches for the valuation of investments at the centre of disputes (namely the market based, the income based and the asset based valuation approaches); the corresponding valuation methods through which such approaches are implemented; and the basis for their application. The research includes a comparative analysis of the existing valuation instruments. This shows why certain approaches may be used to assess the value of investments in particular arbitration circumstances while others may not. Also, the research points out the importance of correctly correlating the application of the valuation instruments to the context of each investment dispute by reference to at least the type of investment involved, the category of available evidence, and the type of damage incurred by investors. The research uncovers the main advantages and disadvantages of the valuation instruments used in investment disputes. This indicates that the valuation instruments demonstrate a mutual superiority, and also that no complete valuation instrument currently exists. The thesis concludes that the current practice of arbitration tribunals in relation to valuation matters can be improved from several perspectives (i.e. from regulatory, administrative, judicial and theoretical perspectives), and formulates suggestions in this respect.
|Ortino, Federico; Schillig, Michael
|King's College London (University of London)
|Electronic Thesis or Dissertation
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