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The Arbitration Review of the Americas 2017

Investment Treaty Arbitration in the Americas

Latin America continues to see significant activity in investment treaty arbitration and the prospects for continued dispute activity in Latin America in the coming years appear strong. By way of example, in 2015, 4 per cent of the 52 new investment arbitration cases registered under the ICSID Convention and Additional Facility Rules included a South American country as a party, while 2 per cent included Spanish-speaking countries from the Caribbean and Central America.1 The Centre registered two cases that involved Argentina, while Panama and Mexico were each party to a newly registered case.2 Five per cent of the arbitrators, conciliators and ad hoc committee members appointed in cases registered in 2015 were South American nationals (10 total), 4 per cent were from Central America (eight total), and one arbitrator was from Mexico.3 In addition, 16 per cent of the 18 cases commenced under the UNCITRAL Rules have included a Latin American country as a party. At the opposite end of the arbitration ‘life cycle’, the first five-and-a-half months of 2016 saw an increasing number of cases involving Latin American countries come to a close. Between 1 January 2016 and 15 June 2016, three ICSID awards were rendered in cases against Venezuela.4 In that same period, ICSID awards were rendered against Argentina,5 Panama6 and the Dominican Republic.7 The region continues to see an influx of foreign investment from all over the world, which suggests that it will likely continue to see investment treaty disputes for the foreseeable future.

This article briefly discusses three developments that are expected to be important for arbitration practitioners, international investors and others interested in the investment dispute settlement system.

First, following the political upheaval in the country, Argentina’s recent settlements and payments of international investment arbitration awards represent a historical and fundamental change in the country’s position regarding a return to the international capital markets and, one of the inevitable consequences of this, the country’s recognition and compliance with investment-treaty-arbitration awards. As a timely comparison, Venezuela – facing growing debt from recent unfavourable investment treaty awards – has taken the opposite stance, focusing its efforts on annulment requests and applications for stay of the awards pending resolution of the annulment proceedings. These developments are likely to bear on the future prospects for these countries in the international capital markets as well as on award recognition and compliance in both countries and in the region.

Second, in the awards against Venezuela in Tenaris, Vestey Group and Crystallex, tribunals departed from the generally accepted valuation method of discounted cash flows analysis. Instead, the tribunals adopted different approaches that better fit the investments and circumstances at issue in each case.

Finally, the interpretation of time limitations in Latin American free trade agreements has come into focus in three recent cases. In the Corona Materials case, the United States – as a non-disputing party – submitted an interpretation on the three-year time limitation in the Dominican Republic-Central America FTA (CAFTA-DR), which mirrors the relevant language from the North American Free Trade Agreement (NAFTA). The tribunal dismissed the claim, adopting the United States’ opinion that the three-year limitations period cannot be renewed or tolled by the sovereign’s continuous conduct. In the Eli Lilly and Mercer cases, which are still pending, Mexico and the United States – also as non-disputing parties – respectively submitted the same interpretation that the three-year time limitation in the NAFTA cannot be renewed or tolled. These cases raise the issue of how the time limitation provisions should be interpreted and to what extent tribunals, in a given treaty dispute, should consider the state parties’ opinions in this regard.

Argentina’s and Venezuela’s compliance with investment arbitration awards

Argentina’s multiple settlements reveal its willingness to comply with awards

The election of Mauricio Macri as Argentina’s president in December 2015 brought about an important shift in the country’s approach toward foreign investment: in an effort to restore confidence in Argentina as an investment destination and to revitalise the economy, the Macri administration has committed itself to honouring its international obligations. By all accounts, this was a necessary precondition for Argentina before it could successfully re-enter the international capital markets. Accordingly, the Macri government has decided to fulfil its obligations under international arbitration awards that were issued against Argentina before the election.

In this spirit, Argentina recently settled several long-­standing treaty arbitration disputes. Argentina settled the Abaclat case, which had been brought before ICSID by thousands of Italian bondholders for US$1.35 billion.8 Argentina also paid hundreds of millions of dollars to settle arbitral awards in favour of the UK’s BG Group and the US’s El Paso Corporation. On top of these arbitral settlements, Argentina paid US$9.3 billion to settle its decades-long dispute with holdout creditors who owned sovereign bonds on which Argentina defaulted in 2001 (this dispute was resolved by the United States District Court for the Southern District of New York, not an arbitration tribunal).9 In settling these long-standing disputes, the Argentine government’s message has been one of conciliation and friendliness towards international investors and lenders: the settlements ‘put an end to the claims and level the way to re-establishing direct investments, particularly from companies coming from the associated countries (Britain and the United States) and in the energy sector.’10

Before these recent settlements, Argentina had remained notoriously recalcitrant towards the international capital markets and international investors who had existing arbitration claims or awards against it. Under the Kirchner administration, Argentina consistently pursued annulment of awards and regularly sought stays of enforcement by arguing that any party attempting to benefit from an ICSID award first had to commence enforcement proceedings in a national court. Argentina argued that article 53 of the ICSID Convention did not impose an obligation to voluntarily pay awards, and that article 54 required award creditors to submit awards before local courts using the local proceedings applicable to domestic judgments against the state, thus allowing Argentina to rely on public policy considerations to resist enforcement.11 Argentina maintained this position for at least eight years before President Macri’s election, refusing to pay arbitration awards entered against it, even in the face of the determinations by several annulment committees that Argentina’s position was incorrect and amounted to non-compliance with the ICSID Convention.12

Given its past defiant position regarding international arbitration awards, Argentina’s recent settlements and recognition of investment arbitration awards constitute a fundamental shift for the country. It remains to be seen whether Argentina will continue on this path of voluntary compliance and settlement with investment treaty awards entered against the country,13 but its current conduct conveys a strong commitment to do so. It also remains to be seen whether Argentina’s recent attitude towards international arbitral awards, and, more generally, its (re)recognition of the legitimacy of the system of settlement of international investment disputes, will influence other Latin American countries that have a similar history of defiance in the face of investment treaty awards, such as Ecuador and Venezuela.

Venezuela staring down the twin barrels of growing ICSID arbitral debt and economic turmoil

The first half of 2016 has seen three sizeable investment treaty awards against Venezuela. As a result, Venezuela’s cumulative debt in ICSID cases has grown sharply, reaching approximately US$4.6 billion, not including post-award interest, as of April 2016. This represents a US$1.6 billion increase (over 50 per cent) in the country’s already massive ICSID arbitral debt of US$3 billion as of March 2015.14

On 29 January 2016, the ICSID tribunal in Tenaris rendered the first of these three awards, ordering Venezuela to pay damages of US$87.3 million. Some months later, on 4 April 2016, another ICSID tribunal ordered Venezuela to pay US$1.4 billion to Canadian investor Crystallex – one of the largest awards in ICSID’s history. Only a few days after, in Vetsey Group, an ICSID tribunal ordered Venezuela to pay the investor nearly US$100 million. Further complicating matters for Venezuela, the ICSID website lists 17 pending arbitrations against the country, in addition to seven annulment proceedings that Venezuela has initiated.

The question, of course, is how Venezuela will act in the face of this mounting arbitral debt. To date, Venezuela has not paid any of the awards mentioned above, and the likelihood that it will do so voluntarily in the short term seems dubious, at best. Significantly, the likelihood that Venezuela will comply voluntarily with its outstanding arbitral debt is dimmed by the Chavez/Maduro administrations’ antagonism to ICSID and bilateral investment treaties as well as the dire economic situation confronting the country. Indeed, Venezuela withdrew from ICSID in 2012, contending that the Centre and the tribunals constituted under its aegis were biased against sovereigns (especially developing nations) and almost exclusively vindicated the interests of multinational corporations.15 In fairness, despite this acrimonious relationship with ICSID, Venezuela has shown some willingness to settle disputes through non-monetary means. In February 2016, for example, Venezuela and Gold Reserve Inc signed a memorandum of understanding to settle an arbitration dispute over the Las Brisas gold concession, which the parties agreed to jointly exploit together with the Las Cristinas mines.16

In addition to the above, as noted, the precarious condition of Venezuela’s economy casts further doubt on Venezuela’s ability (and willingness) to satisfy the awards rendered against it. Data from Venezuela’s Central Bank shows that the country’s economy shrank by 5.7 per cent in 201517 and, according to the IMF, Venezuela will experience a deep recession in 2016 and will see its economy shrink more than any other country in the world, mostly because of the plunging price of oil.18 Additionally, Venezuela’s all but certain default on its national debt by the end of the year raises even more questions about its ability to comply with its mounting arbitral debt.19 Finally, foreign investors may be wary of entering into settlement agreements with the Maduro administration, given the Venezuelan legislature’s warning that foreign contracts entered into without legislative approval may be deemed null.20

Given these realities, Venezuela has recently adopted a practice of seeking stays of enforcement of arbitral awards pending the outcome of annulment proceedings reminiscent of a pre-Macri Argentina. In support of such applications, Venezuela has argued, inter alia, that provisional stays are standard practice and almost automatic; that its requests have not been dilatory; and that it would not be able to recover payments to claimants if it prevails in the annulment proceedings. Results for Venezuela have been mixed. In a limited win, on 29 February 2016, Venezuela succeeded in convincing an ICSID annulment committee to partially stay the award in Tidewater.21 However, less than two weeks later, on 11 March 2016, the annulment committee in Flughafen Zürich conditioned the continuation of a stay on Venezuela’s posting of an unconditional and irrevocable bank guarantee for the full amount of the outstanding award in favour of the claimant, which Venezuela has not yet done.22 Most recently, on 4 April 2016, the annulment committee in OI European Group flatly rejected Venezuela’s request to continue a stay of enforcement of the award rendered against it, paving the way for claimant to seek enforcement of its award during the annulment proceedings.23

Given Venezuela’s significant political and economic difficulties, it seems likely that, like pre-Macri Argentina, Venezuela will continue to approach its mounting arbitral debt with delay and obstruction in the form of routine annulment and stay requests independent of the merits of those petitions. Whether Venezuela can or will pay its arbitral debt voluntarily remains doubtful, though it might attempt to reach non-monetary settlements with investors as it did with Gold Reserve. Investors, however, should enter any such transaction with eyes wide open in light of the political and economic instability that prevails in the country and, perhaps more importantly, of the Venezuelan legislature’s ominous warning against agreements entered into without its prior approval. Caveat emptor. What is certain, however, is that before Venezuela can once again be viewed as a hospitable place for foreign direct investment, it must cease these practices that shun the international investment community.

Venezuela’s involvement in investment treaty arbitration has also generated recent developments in damages analysis within the past year, which we discuss next.

Quantum determinations

Last year’s overview highlighted the tribunal’s decision in Tidewater,24 in which the tribunal, following its finding of expropriation, applied a nuanced version of the discounted cash flow (DCF) valuation method in determining the amount of damages.25 In the past several months, however, three tribunals have declined to use DCF or DCF-like methods in quantifying damages stemming from expropriations in Venezuela.

The limitations of discounted cash flow analysis

In January 2016, the tribunal in Tenaris found that Venezuela had unlawfully expropriated the claimants’ interest in a start-up steel company.26 The tribunal determined that Venezuela had to provide full compensation to the claimants.27 To that end, both parties submitted that the tribunal should use the DCF method of valuation to determine the quantum of damages, though with differing assumptions.28 Notwithstanding the parties’ agreement on the propriety of the DCF valuation method in the circumstances of the case, the tribunal declined to employ it. The tribunal noted a number of concerns with the application of that approach to the particular facts of the case, including: the normal need for adjustments during the start-up period; the ups and downs of production and delivery of inputs; the short history of the start-up’s operations; the Venezuelan government’s interference in the market; and unstable inventories and shortages of a wide range of products in the Venezuelan market.29 The tribunal also declined to use the market multiples method (which bases value on the enterprise value of comparable companies).30 Instead, the tribunal looked to an arm’s length transaction between a willing buyer and a willing seller.31

Several months later, in Vestey Group,32 another tribunal found that Venezuela had unlawfully expropriated a claimant’s investment in a cattle ranch.33 Once again, the tribunal determined that Venezuela had to provide full compensation to the claimant,34 and again, the Venezuelan government argued for the use of a DCF approach in calculating the damages owed to the claimant.35 However, in contrast to Tenaris, the claimant in this case opposed the use of a DCF approach, arguing that it was not grounded in the claimant’s business expectations.36 In addressing the parties’ arguments regarding the application of the DCF method to the circumstances of the case, the tribunal did not analyse the same concerns addressed by the Tenaris tribunal, focusing instead on the assets that made up the claimant’s business. The tribunal agreed with the claimant that the full value of its land could not be captured by the business’ cash flows, because the claimant relied on occasional sales of parcels of land that appreciated over time.37 Moreover, the tribunal noted that a DCF valuation would be problematic because the land at issue reached its carrying capacity in 2011, forcing an increase of cattle sales and thus affecting cash flows.38 As a result, instead of the DCF method advanced by Venezuela, the tribunal used an asset-based valuation.39

Although differing somewhat in their rationale, both Tenaris and Vestey Group highlight the concerns that tribunals have in using a DCF approach where there is considerable uncertainty as to the future of a claimant’s business given the micro and macroeconomic situation of the country, an issue that is particularly pressing in today’s Venezuela.

The value of valuation data and methodological consistency

In Crystallex,40 the tribunal found that Venezuela had denied the claimants fair and equitable treatment and had expropriated their investment in a gold mine concession.41 The tribunal was presented with four different methods to determine damages:

  • the stock market approach, which assesses the damage to the value of claimant’s stock price by comparison to the evolution of other stock prices;42
  • the P/NAV method, which calculates the net present value of future cash flows and adjusts those cash flows to account for industry-specific risk, considering the market capitalisation of publicly traded companies in the industry;43
  • the relative market multiples method, which looks to the enterprise value and to the size of reserves of publicly traded gold mining companies;44 and
  • the indirect sales comparison method, which takes prior mine transactions and develops a valuation using adjustments.45

Notably, the claimants did not present a traditional DCF analysis to the tribunal, arguing that the weighted average cost of capital was not a reliable indicator of the industry risks that affect gold companies, because gold is unusual as both a commodity and a safe haven.46

The tribunal found that the P/NAV method was unreliable because it produced inconsistent results for the valuation date and lacked comparable companies.47 As to the indirect sales comparison method, the tribunal found that it was excessively speculative.48 Ultimately, the tribunal found that the stock market approach and the market multiples method provided better bases for valuing the claimant’s loss.49 The tribunal averaged the results from these two approaches to reach its award.

The Crystallex tribunal’s conclusion serves as an important reminder of the need to carefully assess damages calculation approaches and to offer alternative approaches to the traditional DCF valuations when the specific industry or market conditions require it. Indeed, the failure to use appropriate approaches may well result in the tribunal rejecting the proffered valuations.

In addition to the recent developments in damages analysis case law, the past year saw a few investment treaty tribunals applying the statutes of limitations found in newer-generation treaties, which we discuss next.

Non-disputing parties’ interpretations of time limitations in free trade agreements

In a recent dissent concerning the scope of ‘procurement by a party or a state enterprise’ under the NAFTA, Judge Charles N Brower warned against the influence of non-disputing state parties’ submissions on interpretive issues.50 He disagreed that interpretation of NAFTA should be ‘materially influenced’ by the apparent agreement of ‘[a]ll three NAFTA Parties,’ noting that non-disputing parties inevitably ‘club together’ and never differ ‘from the interpretation being advanced by the respondent State’.51 Because ‘only three Ministers of the States Party to NAFTA, convened as the Free Trade Commission, can “resolve disputes that may arise regarding [NAFTA’s] interpretation or application”,’ Judge Brower urged that ‘caution should be exercised, if not skepticism,’ when non-disputing state parties team up in arbitrations to support the respondent state’s interpretation of a treaty provision.52

The time appears ripe for Judge Brower’s concerns. In three cases under the NAFTA and the CAFTA-DR, non-disputing state parties recently filed submissions on the interpretation of the three-year time limitation in each instrument. The NAFTA and the CAFTA-DR (along with other regional FTAs in Latin America)53 contain an essentially identical time limitation for advancing claims, prohibiting claims ‘if more than three years have elapsed from the date on which the investor first acquired, or should have first acquired, knowledge of the alleged breach [...] and knowledge that the [claimant/investor] has incurred loss or damage.’54 In Eli Lilly and Company v Government of Canada, Mexico made a submission on the interpretation of this time limitation in the NAFTA;55 in Corona Materials v Dominican Republic, the United States submitted the same interpretation of the time limitation in the CAFTA-DR;56 and in Mercer International v Government of Canada, the United States submitted the same interpretation of the NAFTA time limitation.57 In all of the submissions, the other sovereigns took the same position as the respondent state in each dispute: that ‘neither a continuing course of conduct nor the occurrence of subsequent acts or omissions can renew or interrupt the three-year limitation period once it has commenced to run.’58 The tribunal in Corona Materials decided in favour of the Dominican Republic on the ground of this time limitation.59 No award has been made public in Eli Lilly or Mercer as of 20 June 2016.

In these cases, the non-disputing state parties’ views are not beyond debate. The text of the NAFTA and the CAFTA-DR do not specify whether the three-year time limitation in those treaties can be tolled or renewed; notwithstanding the recent decision in Corona Materials, the texts arguably are at least ambiguous on the issue of tolling/interruption of the time limitation or continuing breaches that renew the time limitation. In fact, less than 10 years ago, the NAFTA tribunal in United Parcel Service v Canada rejected Canada’s strict interpretation and held that ‘continuing courses of conduct constitute continuing breaches of legal obligations and renew the limitation period accordingly.’60 Given the apparent disagreement over the interpretation and application of the time limitation in the NAFTA – and the uniform position that Canada, the United States and Mexico have taken in recent arbitrations – one might wonder why the NAFTA state parties have not resolved this issue through an interpretive statement of the Free Trade Commission to provide ex ante direction to tribunals and investors. Instead, the state parties have resorted to making submissions as non-disputing parties in arbitrations, which as Judge Brower observes, are not authoritative but may be subjected to ‘caution […] if not skepticism’.61

The involvement of the United States and Mexico as non-disputing parties in Eli Lilly, Mercer and Corona Materials raises significant questions about the role of such submissions under Article 10.20.2 of the CAFTA-DR and Article 1128 of the NAFTA. If their submissions are successful in guiding tribunals to the states’ desired interpretations of the NAFTA and the CAFTA-DR, states may not need to convene to issue authoritative interpretations. In these circumstances, investors may perceive that the state parties have united to defeat validly asserted claims, or that the investors have not just one governmental adversary but several. State parties, on the other hand, have a legitimate interest in seeing that tribunals interpret these instruments in accordance with the intentions of the parties who drafted them.

The three-year time limitation under the NAFTA and the CAFTA-DR is an important issue for investors that calls for as much certainty as possible. As the investor alleged in Corona Materials, some governmental measures or omissions may not clearly materialise on a certain date, or may not definitively acquire finality owing to potential avenues of redress.62 Specifically, the investor in Corona Materials alleged that the wrongdoing consisted of an ‘arbitrary omission’ and that during a critical trigger period the investor ‘received mixed signals […] that led it to believe that the Negative Environmental Decision would be re-considered’.63 In such cases, the ‘continuing breach’ doctrine or similar tolling doctrines can be the sine qua non of the investor’s claim. If, as Corona Materials held, the three-year limitations period cannot be renewed or tolled, investors need to know this via clear language so that they can avoid falling into the trap of submitting untimely claims.

The participation of the United States and Mexico as non-disputing parties in these disputes shows a developing agreement among the state parties that the three-year time limitations in the NAFTA and the CAFTA-DR should be non-renewable and non-tollable. In Corona Materials, citing what the United States ‘rightly pointed out’ in its submission as a non-disputing party, the tribunal adopted the strict interpretation of the time limitation in the CAFTA-DR.64 The tribunals’ decisions in Eli Lilly and Mercer may determine whether this de facto agreement among state parties becomes effective law, or whether the state parties need to resort to more authoritative means for interpreting the NAFTA, the CAFTA-DR and other FTAs in Latin America with similar provisions.

Conclusion

The past year again saw many high-profile cases involving Latin American countries and, based on new filings, this trend of continued treaty disputes in Latin America has no end in sight. The sustained influx of foreign investment in the region stemming from the demand for foreign capital and the willingness of some governments to settle disputes and comply with awards will also continue to generate future disputes. Thus, it is likely that Latin America will continue to occupy an important place in the arena of international investment arbitration and in the continued development of investment law, as demonstrated by the decisions discussed above regarding the determination of damages due to claimants affected by the internationally wrongful conduct of certain Latin American states and regarding the decisions concerning limitations periods that bar claimants from advancing their claims.

Quinn Emanuel summer associate, Chris Goodnow, also contributed to this article.

Notes

1     ICSID Caseload Statistics Issue 2016-1, ICSID at 24 (2016).

2     Id. at 25.

3     Id. at 30-31.

4     See Tenaris SA & Talta-Trading Marketing Sociedade Unipessoal LDA v Venezuela, ICSID Case No. ARB/11/26, Award (29 January 2016); Crystallex International Corporation v Venezuela, ICSID Case No. ARB(AF)/11/2, Award (April 4, 2016); Vestey Group Ltd v Venezuela, ICSID Case No. ARB/06/4, Award (15 April 2016).

5     See Mobil Exploration and Development Inc Suc. Argentina and Mobil Argentina SA v Argentine Republic, ICSID Case No. ARB/04/16 (25 February 2006).

6     See Transglobal Green Energy LLC & Transglobal Green Panama, SA v Panama, ICSID Case No. ARB/13/28, Award (2 June 2016).

7     See Corona Materials LLC v Dominican Republic, ICSID Case No. ARB(AF)/14/3, Award (31 May 2016).

8     ICSID Case No. ARB/07/5.

9     www.reuters.com/article/us-argentina-debt-idUSKCN0XJ1OO.

10   http://fortune.com/2016/05/14/argentina-energy-co-arbitration/.

11   See, eg, Enron Corporation v Argentine Republic, ICSID Case No. ARB/01/3, Decision on the Argentine Republic Request for a Continued Stay of Enforcement of the Award (Rule 54 of the ICSID Arbitration Rules) (20 May 2009); Continental Casualty v Argentine Republic, ICSID Case No. ARB/03/09, Decision on Argentina’s Application for a Stay of Enforcement of the Award (23 October 2009); Sempra Energy international v Argentine Republic, ICSID Case No. ARB/02/16, Decision on the Argentine’s Request for a Continued Stay of Enforcement of the Award (March 5, 2009); EDF International SA et al v Argentine Republic, ICSID Case No. ARB/03/23, Decision on Continuation of the Stay of Enforcement of the Award (26 September 2013).

12   See, eg, Continental Casualty, ICSID Case No. ARB/03/09, Decision on Argentina’s Application for a Stay of Enforcement of the Award, paragraph 12 (23 October 2009) (maintaining a stay of enforcement but on different grounds); Enron Corporation v Argentine Republic, Decision on the Argentine Republic Request for a Continued Stay of Enforcement of the Award, ICSID Case No. ARB/01/3, paragraphs 23-29 (20 May 2009) (same); Sempra Energy international v Argentine Republic, ICSID Case No. ARB/02/16, Decision on Request for a Continued Stay of Enforcement of the Award, paragraphs 104-116 (5 March 2009) (ordering Argentina to post a payment in escrow because despite the clear conclusions of previous ad hoc Committees, Argentina’s position remained unaltered).

13   The ICSID website lists 16 pending cases against Argentina (not counting Abaclat) with three of them under annulment proceedings that had been initiated by Argentina during the Kirchner administration.

14   www.iareporter.com/articles/analysis-as-venezuelas-icsid-debts-hits-4-6-billion-before-interest-two-ad-hoc-committees-offer-differing-approaches-to-requests-that-stays-of-enforcement-be-lifted/.

15   www.iareporter.com/articles/venezuelan-exit-from-icsid-raises-questions-both-legal-and-financial/.

16   www.reuters.com/article/us-venezuela-arbitration-idUSKCN0VY05Y.

17   www.tradingeconomics.com/venezuela/gdp-growth-annual.

18   www.bloomberg.com/news/articles/2015-10-06/venezuela-worst-in-world-as-imf-forecasts-economy-to-shrink-10-.

19   https://next.ft.com/content/cf14a292-d40d-11e5-829b-8564e7528e54.

20   www.reuters.com/article/us-venezuela-politics-idUSKCN0YH2L9.

21   ICSID Case No. ARB/10/5, Decision on the Applicant’s Request for a Continued Stay of Enforcement of the Award (29 February 2016).

22   ICSID Case No. ARB/10/19, Decision on the Provisional Suspension of the Award (11 March 2016).

23   ICSID Case No. ARB/11/25, Decision on Stay of Enforcement of the Award (4 April 2016).

24   ICSID Case No. ARB/10/5, Award (13 March 2015).

25   The DCF approach combines an established historical record of financial performance with the use of reasonable and reliable projections of future free cash flows and discounting them to present value.

26   ICSID Case No. ARB/12/23, Award, paragraphs 493-97 (29 January 2016).

27   Id. at paragraphs 512-517.

28   Id. at paragraphs 501-503, 508.

29   Id. at paragraphs 526-27.

30   Id. at paragraph 532.

31   Id. at paragraphs 566-567.

32   ICSID Case No. ARB/06/4, Award (15 April 2016).

33   Id. at paragraph 309.

34   Id. at paragraph 331.

35   Id. at paragraph 346.

36   Id. at paragraph 345.

37   Id. at paragraph 351.

38   Id. at paragraph 355.

39   Id. at paragraph 356.

40   ICSID Case No. ARB(AF)/11/2, Award (4 April 2016).

41   Id. at paragraphs 623 and 718.

42   Id. at paragraphs 804-814.

43   Id. at paragraphs 771-783.

44   Id. at paragraphs 793-799.

45   Id. at paragraphs 818-822.

46   Id. at paragraph 772.

47   Id. at paragraph 899.

48   Id. at paragraph 916.

49   Id.

50   Mesa Power Group, LLC v Government of Canada, Concurring and Dissenting Opinion of Judge Charles N Brower, paragraph 30 (25 March 2016).

51   Id.

52   Id.

53   See, eg, Panama-CAFTA, article 10.17(2); México-Costa Rica-El Salvador-Guatemala-Honduras-Nicaragua FTA, article 11.22(1).

54   NAFTA, article 1116(2); CAFTA-DR, article 10.18(1).

55   Case No. UNCT/14/2 (18 March 2016)

56   ICSID Case No. ARB(AF)/14/3 (11 March 2016).

57   ICSID Case No. ARB(AF)/12/3 (8 May 2015).

58   Eli Lilly v Canada, Submission of Mexico, paragraph 7.

59   Corona Materials v Dominican Republic, ICSID Case No. ARB(AF)/14/3, Award (31 May 2016).

60   UNCITRAl, Award paragraph 28 (24 May 2007); but see Grand River v United States of America, Decision on Objections to Jurisdiction, paragraph 29 (20 July 2006); Feldman v Mexico, ICSID Case No. ARB(AF)/99/1, Award, paragraph 63 (16 December 2002).

61   Mesa v Canada, Concurring and Dissenting Opinion of Judge Brower, paragraph 30.

62   Corona Materials v Dominican Republic, ICSID Case No. ARB(AF)/14/3, Award, paragraphs 123, 129 (31 May 2016).

63   Id. at paragraph 123.

64   Id. at paragraph 215.