Originally from World Arbitration And Mediation Review (WAMR)

Ladies and gentlemen. During my law school days, frustration increased dramatically if teachers said that a question had no right answer. But with today’s topic, that caveat does apply. On many issues examined in the next panel, few right answers present themselves with any clarity. Some wrong answers exist, of course. However, on most significant matters related to quantum of damages, divergent approaches frequently possess their own validity, each claiming some measure of truth depending on the context of their application.

Part of the reason this area remains in such flux is that the field of investment arbitration continues to be invented on an almost daily basis; so few of us can call ourselves experts. We might be specialists in the sense that this is what we do for a living. But my last moment as an expert occurred shortly after I did my first case. Then, of course, I knew everything about the subject. But with the second and third cases came a realization that the varying positions other people took had considerable nuances and complexity, and thus weighing the relative costs and benefits was more difficult than originally expected.

The conference organizers now seek a brief laundry list of the various issues by which one might frame the next session’s discussion. Most of them present a vast intellectual ocean that has drowned minds far better than my own. However, one key issue runs like a thread through much of the discussion, and might well serve as a springboard to approach other questions. That issue relates to the legality (or lack thereof) of an expropriation.