Adequacy and Foreseeability of the Financial Damage Analysis in International Arbitration

Abstract

The financial damage analysis has always been problematic in the world of international dispute resolution, this issue is one of the most intricate questions in arbitration, and it became more sophisticated during the era of COVID-19, and will continue to be even after this pandemic is over. And this explains why the arbitrators usually request the help of experts when dealing with this question, even before COVID-19.

In order to deal with the question of the adequacy and foreseeability of the financial damage analysis, the valuation decision and the whole process that leads the tribunal to that decision shall be examined.

But, is the valuation decision a question of fact or a question of law? Well, from the perspective of the tribunal, it is both, a matter of fact and a matter of law. Because each case has its own specific circumstances and the valuation directly depends on the enterprise, business or investment being valued, besides, there are different approaches of valuation, so this explains why it is a question of fact.

On the other hand, it is indeed a question of law as well, because many legal standards, principles and concepts must be reached to and settled in the process of valuation, the arbitrator shall go through different applicable standards, for instance: (fair market value, adequate compensation, damnum emergens, proximate cause, foreseeability of the injury, lucrum cessans and more..)

Most of the aforementioned concepts and principles shall be dealt with during our short journey in this paper, by then, we shall reach to an answer to our main question.

Keywords: Arbitration, Damages, Analysis, Financial Damage Analysis, Adequacy, Valuation, Foreseeability, Commercial Arbitration, Investment Arbitration, Assess of Damages, Calculation of Damages, Causation Link, Law of Damages