Valuation Techniques in Investment Treaty Disputes: Why How You Value Matters as Much as What You Value
The Silent Force Shaping Investment Arbitration Awards In investment treaty arbitration, the headline moment comes when a tribunal determines that a state has breached its obligations to a foreign investor. But the real story—and the real money—emerges in what comes next. The tribunal must answer one of the most consequential questions in modern international law: How much compensation is actually owed? Investment treaties speak in principles. They reference “full reparation,” “fair market value,” and “just compensation.” These sound definitive. In practice, they are remarkably silent on methodology. That silence is filled by valuation techniques. And here’s what matters: the choice of valuation method has become one of the most powerful drivers of compensation outcomes in modern investment arbitration. I’ve worked across enough investment cases and financial models to know this with certainty—in arbitration, valuation is not neutral. It is where finance meets law, and where assumptions quietly determine billions in compensation. The Core Valuation Challenge: Answering Impossible Questions Tribunals face one of two fundamental questions: Full Reparation: What financial position would the investor have been in if the treaty breach had never occurred? Fair Market Value: What was the investment worth immediately before expropriation? Both require tribunals to estimate value under profound uncertainty. They must reconstruct scenarios that never happened, price assets years after disputes arose, and make judgments about what markets would have done under different conditions. The challenge is not academic. It is existential to valuation practice in arbitration. The Three Main Valuation Approaches: Understanding Each 1. Market-Based Valuation: Value From Real Markets The principle: Value is what willing buyers pay willing sellers. Market-based valuation anchors itself in observable evidence: Actual arm’s-length transactions of comparable assets Public equity market prices Comparable company multiples (EBITDA, reserves, production volumes, contract pipelines) This approach has intuitive appeal. It reflects what the market actually decided to pay, not what an analyst thinks value should be. Strengths: Grounded in real market behavior, not models Inherently credible to decision-makers Reduces speculation and subjectivity Reflects time-tested market discipline Limitations: Comparable transactions are rarely available in the specific context of the disputed investment Adjustments between companies (for size, geography, political risk, asset quality) introduce hidden subjectivity Markets themselves are not always efficient or liquid Reality on the ground: Market-based valuation is used in only a minority of investment treaty cases—perhaps 15-20% of disputes. Why? Because truly comparable sales data is scarce. When a government has expropriated a unique mining concession or terminated a long-term power contract, finding a recent market transaction for an equivalent asset is nearly impossible. Yet when market data does exist, tribunals lean on it heavily. It carries authority that models cannot match. 2. Income-Based Valuation (Discounted Cash Flow – DCF): The Power and the Peril The principle: An asset is worth the present value of its future earnings. The DCF method is the workhorse of investment treaty valuation. It works in three steps: Project future net cash flows from the investment Discount those flows back to present value using a risk-adjusted discount rate (typically the Weighted Average Cost of Capital – WACC) Aggregate the discounted values into a single valuation Tribunals increasingly favor DCF because it aligns with fundamental economic principles. Full reparation is about restoring lost opportunity—the cash the investor would have generated. Rational buyers price assets on future income potential, not historical cost. Why tribunals embrace DCF: Directly addresses full reparation principles Reflects how real investors think about value Captures the earning potential of the investment Supports larger compensation awards (which appeals to claimants) But here is the critical problem: DCF is extraordinarily sensitive to assumptions. Consider what changes valuation: Growth rates: ±2% change in annual growth compounds into hundreds of millions Commodity prices: A $5/barrel shift in long-term oil assumptions can swing a valuation by $1-2 billion Discount rates: A 50 basis point change in WACC changes present value by 10-15% Country risk premiums: Political risk assessments add 3-8% to discount rates—often without clear justification Terminal value: Assumptions about value beyond the explicit forecast period often represent 50-70% of total valuation I have reviewed DCF models where changes to three or four key assumptions swung compensation by $3-5 billion. The mathematics is precise. The inputs are speculative. Best suited for: Operating, profitable businesses with stable revenue streams Investments with predictable market demand (utilities, infrastructure) Projects with established operational history Commodities with liquid, observable price benchmarks Less reliable for: Early-stage or pre-revenue projects Greenfield investments with no operational history Projects heavily exposed to regulatory, political, or social uncertainty Speculative ventures dependent on unproven technology The deep issue: Tribunals often recognize DCF’s limitations but lack a credible alternative. So they apply DCF while adding cautionary language. They caution against double-counting, warn against optimistic projections, and note the danger of cumulative valuation methods. But the award itself still reflects the DCF number—often from the claimant’s most optimistic model. 3. Asset-Based Valuation: The Conservative Backward Look The principle: An investment is worth what was spent to build it. Asset-based methods value an investment based on: Actual capital expenditure incurred (capex) Book value of physical and tangible assets Historical acquisition costs (sometimes without depreciation) Replacement cost of assets Tribunals typically turn to this approach when: The investment never became operational Profitability remains speculative Regulatory or community approval was uncertain or unresolved The investment was abandoned before generating cash flows Strengths: Heavily evidence-driven (historical costs are documented) Conservative (does not rely on forecast assumptions) Minimizes speculation and judgment Defensible in early-stage or speculative contexts Limitations: Completely ignores future upside and earning potential May dramatically undercompensate successful, scalable projects Fails to account for the difference between a failed investment and a disrupted successful one Treats spent capital as the ceiling on value, even when the investment had genuine future prospects The strategic reality: Asset-based valuation has become less common in recent decades. Claimants resist it because it inherently produces smaller awards. Tribunals, increasingly sympathetic to full reparation principles, recognize that pure historical cost valuation can produce manifestly unjust results—penalizing investors whose projects were disrupted before they reached profitability. Yet asset-based methods remain essential in specific contexts: early-stage greenfield investments, projects in unstable jurisdictions, ventures dependent on regulatory approval









