Valuation Approaches in Telecoms Arbitrations: Commercial Arbitrations

The fundamental objective of every damage assessment in commercial arbitrations is to put the injured party in the same economic position it would have been, but for the wrongful act.^[2] Damages can rarely be quantified by observation or a readily available analysis. Thus, most often damages are calculated as the difference of two values as of the same valuation date – one ‘as expected/warranted’, assuming the wrongful act had not occurred and one ‘as is’ value.^[3] This valuation approach is also considered the ‘differential method’ applying the widespread ‘but for’ theory in damages calculation.

In commercial arbitrations in the telecoms industry, several valuation methods are used in practice. Since different valuation approaches may lead to (slightly) different results, the appropriate valuation method or methods should be carefully selected depending on the characteristics of the respective case.

Thus, the following sections briefly illustrate the basic valuation concepts and provide a short introduction to valuation approaches and methods most often applied in commercial arbitrations in the telecoms industry according to our experience in this industry over decades.

The valuation approaches introduced hereafter primarily focus on disputes between telecommunication providers that are resolved through commercial arbitration. Dispute resolution mechanisms applicable to conflicts with regulators or governmental ministries will not be addressed in this chapter, although the damage methodology might be largely similar.^[4]

Valuation approaches

Depending on the circumstances of the specific case and the assumptions taken, the values determined by different quantum experts most often diverge. Therefore, experts and arbitrators alike are often confronted with value ranges. Then, they must decide which valuation approach is the most appropriate in this specific case or what weight to attribute to different methods and assumptions presented.

There is not one valuation approach that is suitable for every possible situation. Rather, the most appropriate method must be selected based on the specifics of the case and the available information. According to the International Valuation Standards, which form a foundation of international valuation best practices often equally applicable to damage assessments, three principal valuation approaches are used in valuations:^[5]

• market approach (e.g., comparable publicly-traded companies method, comparable transactions method);
• income approach (e.g., discounted cash flow (DCF) method); and
• cost approach (e.g., net asset value, sunk costs).

Each of these principal valuation approaches comprise different methods of application in commercial arbitrations. In the following sections, we shortly summarise the peculiarities of the three valuation approaches applicable to telecoms arbitrations in more detail.

Market approach

The market approach is a relative valuation approach and rests on the premise that comparable assets should have comparable prices. Consequently, the market approach uses observable market prices of comparable assets to determine the value of the asset to be valued. In simplified terms, it applies the rule of three, that is, the price observable for a similar asset is compared to the asset in dispute.^[6] It requires that there is a sufficient number of observable market prices for the specific asset to be valued. Moreover, it assumes that the observable market price of an asset reflects its (market) value.

Market prices can be obtained either from recent transactions of comparable assets around the valuation date (comparable transactions method) or from contemporaneous (share) price quotes (publicly-traded companies method).^[7]

The search for a benchmark is usually based on telecommunication companies, contracts or assets operating in the same geographic region as the valuation subject and sharing similar characteristics, such as profit margins, risk profile and growth.^[8]

This leads to the limitation of the market approach often observable with telecommunication companies. When valuing a disputed telecommunication company, contract or asset, there are most often no perfectly comparable valuation subjects available around the valuation date. Especially telecommunication contracts and assets are often very specific and hardly comparable to other contracts or assets for which market prices are known.

Consequently, the market approach is most often limited to an application with entire companies, such as in post-M&A disputes of telecommunication companies. In such a setting, an entire telecommunication company might be evaluated, which offers the possibility to refer to a group of (stocklisted) companies or recent company transactions (peer group) that are reasonably comparable.

The selection of the peer group is, however, often contested between opposing quantum experts. It is a subjective assessment of each quantum expert which companies are considered comparable and how many companies should be included in the peer group to have a sufficiently large population.

The simplicity of the market approach is a blessing and a curse. The results of a multiple-based valuation are easy to understand and require fewer assumptions than other valuation approaches. The damages calculation usually fits on ‘a sheet of paper’. On the other hand, the multiple-based valuation can be distorted, for example, if there is insufficient comparability between the benchmark and the valuation subject.

Thus, when applying the market approach to determine damages, the expert should act carefully. Often, it may seem advisable to supplement the market approach by other valuation methodologies.

Income approach

The income approach determines the value of a company, contract or asset as the net present value of its expected future cash flows, applying a discount rate that reflects the time value of money and the risk attributable to these cash flows.^[9]

The predominant form of the income approach is the discounted cash flow (DCF) method, which is widely used in all kinds of valuation settings.^[10] The reason for the success of the DCF method is quite simple. The DCF method provides great flexibility and can be applied to almost all businesses, contracts and assets that are generally profitable and where the business is generally profit-oriented.^[11] Given that most telecommunication arbitrations involve profit-oriented companies, the income approach is frequently used to assess all kinds of damages related to telecommunication companies, contracts or assets.

Conceptually, the present values of the expected future cash flows are derived by discounting the cash flows (in the numerator) to a reference date allowing for a specified discount rate (in the denominator), as illustrated in the following formula:

The cash flows are made comparable to how the financial markets would price such cash flows.

The most important rule in the above formula is that the denominator and the numerator must match in terms of currency, maturity, taxation and risks (equivalence principle). However, in the practice of damage assessments, the equivalence principle is often violated. This leads to an over- or underestimation of damages. Frequently observable examples violating the equivalence principle comprise: (1) discounting cash flows denominated in a certain currency (e.g., BRL) with a discount rate that is derived from inputs denominated in a different currency (e.g., US$), (2) discounting long-term cash flows (e.g., cash flows from a contract with a 20-year term) with short-term discount rates (e.g., risk-free rate based on five-year government bonds) or vice versa, and (3) double counting of risk in the cash flow (e.g., reducing the estimated cash flows for a perceived risk) and again in the discount rate (e.g., adding a risk premium for the same perceived risk). It often becomes difficult to identify the different deficiencies for the arbitral tribunal.

The key steps when performing a DCF valuation-based damages assessment can be defined as follows:

• choose the most suitable cash flow type for the nature of the business, contract or asset in dispute (e.g., considering the data availability, real or nominal cash flows);
• determine the relevant valuation date, the appropriate valuation period, and the valuation intervals (e.g., monthly, quarterly, yearly cash flows);
• if the damages period is not limited, determine whether the consideration of a terminal value (based on a sustainable level of cash flows) is appropriate;
• derive the cash flows relevant for the determination of damages, either:
  • as the difference of cash flows expected ‘but for’ the damaging event during the valuation period and the expected cash flows ‘as is’ for the same period; or
  • by directly assessing the cash flows from the wrongful act;
• determine the appropriate discount rate under consideration of the above-mentioned equivalence principle; and
• apply the discount rate to the expected cash flows and terminal value, if any.

We discuss the most relevant input parameters required for such an income approach in the following sections.

Estimating cash flows

The cash flows applicable in the income approach can be either (free) cash flows or (incremental) profits. Before estimating (future) cash flows, historic revenues, costs, investment levels, growth rates, etc., should be analysed. Additionally, market reports provide valuable and neutral (benchmark) information to evaluate such financial developments in the past and in the future. If the projection of cash flows deviates from the expectation of the general market development or historic levels, the assumptions leading to major deviations should be explained and documented. In general, the business plan must appear reasonable and aligned with the underlying strategy or purpose of the company, contract or asset.

What is often more disputed, however, is the duration of such cash flows. When calculating damages in commercial telecommunication arbitrations applying the DCF approach, the duration of the period in which losses are incurred needs to be considered.

Normally, the loss period begins with the date of the wrongful act. However, the end of the loss period can vary. Accordingly, the damages amount derived is directly affected by the length of the damages period assumed. Generally, the longer the damages period the higher the damages. The specific duration of the damages period usually depends on the valuation subject.

If the wrongful act permanently impairs the profit generating abilities of the harmed company, the loss period is often unlimited. This practice is in line with the valuation of businesses where an infinite lifetime is generally assumed.^[12] In this situation, most often a two-stage DCF model is used.^[13] The first stage comprises the explicit forecast period, while the second stage, which is often referred to as the ‘terminal value’, assumes that the cash flows will grow at a constant perpetual growth rate.^[14]

For cases involving a telecommunications contract or asset, the damages period is usually limited. It most often represents the (remaining) term of the agreement or the asset lifetime in dispute. Renewal options and prolongations must be considered according to the individual circumstances and the likelihood of such terms.

Deriving the discount rate

As indicated before, the discount rate is meant to represent an alternative investment with comparable characteristics to the valuation subject regarding maturity, financial risk, operating risk, including currency risk and taxes.^[15]

Consequently, the value of cash flows occurring at different times can be assessed and compared only because of the discount rate making such cash flows comparable.

The discount rate neutralises the uncertainty inherent in the future cash flows as well as the time value of money. Future cash flows cannot be forecasted with certainty since the future itself is uncertain.

The discount rate usually comprises several parameters.^[16] Each of this parameters must be determined to best reflect the equivalence principle as at the valuation date.

Perpetual growth rate

As mentioned above, a perpetual growth rate is applied in cases where the wrongful act permanently impairs the profit-generating abilities of the harmed telecoms company. It can be another major driver of damages.

The perpetual growth rate considered in the terminal value calculation has the same effect as the extrapolation of the cash flows with a certain average annual growth. This is a pragmatic shortcut to avoid the modelling of an unreasonably long damages period. Financially, it represents the growth in volume, prices or inflation over time.

Premiums and discounts

While the cash flows and the discount rate should generally capture all impacts of the value of a business, there might be situations where the consideration of certain premiums or discounts might be applicable. In this context, the International Valuation Standards emphasise that:

When using an income approach it may also be necessary to make adjustments to the valuation to reflect matters that are not captured in either the cash flow forecasts or the discount rate adopted. Examples may include adjustments for the marketability of the interest being valued or whether the interest being valued is a controlling or non-controlling interest in the business.17

Hereafter, we will briefly discuss the concepts of an illiquidity discount and the application of a control premium.

Illiquidity discount

When valuing a telecommunication company or asset, the extent to which the asset is liquid^[18] or marketable might be considered. Market liquidity risk relates to the inability of trading at a fair price with immediacy.^[19] Liquidity in a market means that an asset can be sold rapidly, with minimum transaction costs and at a competitive price.^[20] Consequently, an illiquidity discount would theoretically apply to assets that are neither listed at an organised exchange nor actively traded in an OTC market. This understanding is also confirmed by economic research: ‘both the theory and the empirical evidence suggest that illiquidity matters and that investors attach a lower price to assets that are more illiquid than to otherwise similar assets that are liquid.’^[21]

However, determining an adequate size of an illiquidity discount is in most cases challenging and thus often highly controversial. Illiquidity discount studies exist for both minority and majority interest, but their informative value must be critically questioned. ^[22]

Studies on illiquidity discounts for majority interest analyse differences in transaction multiples between private and publicly listed companies. As explained in the market approach section, multiples can be distorted, which might also lead to distorted results of such studies.

Illiquidity discounts for minority interest can be observed either in (1) restricted stock studies that compare stock prices of listed companies with prices paid in private placements or (2) IPO-based studies that compare the value of minority shares with prices paid on average in IPOs. However, before considering the application of illiquidity discounts found in such studies the inherent selection bias and potential other biases should be carefully reviewed.^[23]

The question if such a discount should be considered in a commercial telecoms arbitration is always dependent on the circumstances of the specific case. If there is the need to consider an illiquidity discount, it usually must be calculated both for determining the ‘but for’ market value of the asset in dispute without the wrongful act as well as in calculating the ‘actual’ market value resulting because of the wrongful act.

This applies even more to situations, in which the dispute is not related to equity shares but to tangible or intangible assets. In such cases, there is typically no or only very limited relevant market data available, so that the determination of an applicable illiquidity discount is predominantly based on the quantum expert’s subjective assessment.

Control premiums and discounts for lack of control

In commercial telecoms arbitrations, control premiums or discounts for a lack of control typically play a less prominent role compared to discounts for illiquidity. Nonetheless, if they are applied, they are often used incorrectly.

When valuing a minority or non-controlling interest, the minority shareholder is typically exposed to the risk of (1) an inefficient management of the company or (2) a deliberately unfavourable treatment by the controlling shareholders. Therefore, the value of controlling a firm lies in the theoretical opportunity to run a company more efficiently than the current decisive shareholders, which would increase the performance of the firm and hence the owner-specific cash flows compared to the status quo. ‘Consequently, the value of control will be greater for poorly managed firms than well run ones.’^[24]

Generally, the appropriateness of a control premium or a discount for the lack of control depends on the underlying valuation basis. When deciding if a control premium or a discount for the lack of control is appropriate, it needs to be analysed if the underlying business plan assumptions of the damage calculation includes (ex- or implicitly) the premise of having control of a business. In such cases, a further consideration of a control premium might be misleading.

In practice, the quantification of control premiums or discounts for lack of control often lead to controversies. Theoretically, they should be calculated based on the cash flows directly attributable to control. However, quantum experts in practice often rely on studies that compare total acquisition prices paid for controlling interests in publicly traded securities with the respective prices before such a transaction was announced. Examples can be found in studies like MergerStat. However, such ‘control premium studies’ should be assessed critically when specifically determining the value of control.^[25] Each transaction included in these studies may have specific factors that impacts its pricing. Therefore, a quantum expert needs to critically examine the case at hand before drawing a conclusion about the size of a potentially applicable control premium – if it is applicable.

Cost approach

In commercial telecommunication arbitrations, the cost approach is often applied to determine the costs a claimant has already spent, namely sunk costs. In general, the cost approach is based on the premise that an investor will not pay more for a telecoms company, contract or asset than the cost to purchase or construct a company, contract or asset of equal utility.^[26]

However, the value of a company, contract or asset is usually higher than the sum of the individual investments made in the past or to be made as at the valuation date. This is, for example, due to the company’s intellectual property, its existing customer base, its brand, its know-how on the efficient use of its assets and its profit generating ability. No profit-oriented investor will, for example, spend US$1 billion to build a telecoms network only to receive US$1 billion from this network in the future. Consequently, when a company regularly generates income streams and is realising an adequate return on its assets the cost approach is usually not making a claimant whole. The cost approach may underestimate damages.

In any event, there are circumstances where the cost approach is useful.

First, the cost approach is an important tool to determine the fair value of a valuation subject if (1) the subject does not produce a (separable) income stream, (2) a business plan cannot be determined or (3) market data of comparable assets is not available.

Second and furthermore, the cost approach can be applied to calculate a floor value for a valuation subject, in a hypothetical liquidation setting. This assumes that an owner would not continue to operate his or her business or asset if he or she can realise a higher return by breaking up and selling the business or asset. This floor value is also the floor for damage.

In any event, the cost approach is (still) applied by arbitration tribunals given that it leaves less room for discretion of the quantum experts and is easier to verify.

Selection of an appropriate valuation approach

As mentioned at the beginning of this chapter, the most appropriate valuation method must be selected based on the specifics of the case and the available information.

While a study of awards in commercial ICC arbitrations found that the valuation methodology most often relied on was the cost approach, over the past decade we have observed a trend towards the market and income approaches.^[27]

The income approach usually offers the greatest flexibility for commercial telecommunication arbitrations. Also, mitigation factors can be comprehensibly included in the damage calculation under the income approach.^[28]

Many commercial disputes in the telecommunication industry are related to licensing and supply agreements, M&A transactions or patents. In such cases, the subject in dispute is most often rather unique and market prices of comparable assets hence not available. The cost approach on the other hand might not be suitable to determine damages, as the costs incurred (or avoided) by the damaging party often is not equal to the damages suffered by the injured party.

Therefore, if sufficiently detailed information is available, the income approach is frequently the first valuation choice.^[29]

The market approach and the cost approach on the other hand may provide a benchmark for the arbitral tribunal to directionally compare the damage derived under the income approach.