February 05, 2018

Any Interest in Compounding?

Reflecting recently on the fact that the question of interest compounding has received essentially no attention in the submissions of the parties in nearly all of my recent cases, I set out to search the online universe for recent scholarship on the issue, and found rather little. Seminal treatments of the question, such as those by Professors Gotanda and Mann , date back more than a decade and in some instances much longer. Instances of commentaries from the investment arbitration community are the exception rather than the rule it seems (see for example Judge Brower’s article in collaboration with Jeremy Sharpe in Transnational Dispute Management in 2006), perhaps because the prominent exponents of the position that the right to compound interest should be recognized as a more or less general principle prefer to confine their advocacy of the position to their awards.

Here it is not my purpose to review the literature or the case law, but mainly to provide some thoughts on why this matter should be so persistently overlooked in the submissions of parties in commercial arbitrations involving relatively large amounts in dispute. But for the reader who would like a nudge in the direction of some cases and contemporary literature on the subject, a very partial list of  respectable sources that support the position that awarding compound interest should be the norm in an international arbitration absent a prohibition in the agreement, treaty, or governing law would include: the awards of ICSID tribunals in the LG&E v. Argentina case and the BG Group v. Argentina case of 2007; the Yukos v. Russian Federation case of 2014 (but only as to Post-Award Interest); and, notably, a comprehensive scholarly treatment by Enrik Haxhirexha, Awarding Interest In Investment Arbitration (CTEI Working Paper 2014) at pp. 33-45, where the reader will find citations to additional relevant investment treaty awards and to many if not most of the leading scholarly treatments on the subject dating back at least to F.A. Mann’s seminal treatment in 1986 (remembered fondly by this commentator who was an eyewitness to the submission of Professor Mann’s expert opinion on this subject in the Starrett Housing v. Iran case, an opinion that in turn was cited by Judge Holtzmann in his dissenting opinion in that case). [* The citations here are a shorthand, sufficing to allow the reader to locate online the complete citation and full text].

A first level of challenge for the Arbitral Tribunal in a commercial case is likely to be that the question of compounding interest, indeed the question of interest generally, may have received little to no attention in the submissions of the parties. This is true even in cases with substantial sums in dispute. The lawyers and arbitrators who have been exposed to the issue are mainly those who have been involved in investment arbitrations with claimed damages in the billions of dollars and interest accrual periods that run a decade or more. When parties engage US counsel who mainly litigate rather than arbitrate, their counsel may assume that the historical reluctance of common law courts to award compound interest will carry over to arbitral tribunals, and for this reason opt not to raise the issue on a Claimant’s behalf. And among those arbitrators who sit in cases governed by New York substantive law, we suppose that Claimants seeking the nine percent rate prescribed in the New York Civil Practice Law and Rules (whose mandatory applicability in arbitration is doubtful) reason that the rate is so far beyond the market or the client’s borrowing costs that a request for compounding would not only appear to the Tribunal to be unduly voracious but might attract attention to the interest rate question from an adversary who might otherwise not be moved to comment.

Consider the following fact patterns from recent cases in which this commentator sat as an arbitrator, each involving substantial claims for damages beginning at accrual dates some years prior to the arbitration hearing, but in which no demand for an award of compound interest was made:

  1. Claim for lost royalties due to distributor’s alleged failure to market the product effectively. Alleged continuing breach beginning four years prior to the arbitration hearing.
  2. Claim for failure to pay contingent additional consideration in buy-sell agreement, where the parties disputed whether the condition precedent for the payments had been fulfilled. Accrual date 2.5 years prior to the arbitration hearing.
  3. Claim for value-diminution damages upon buyer’s re-sale at a loss of a product delivered by the seller with an allegedly latent defective condition. Accrual date three years prior to the arbitration hearing.

Each case presented a legitimate scenario for the awarding of compound interest, assuming liability and damages could be established. By saying this, I mean to convey that the following conditions were met: (1) neither the parties’ agreement nor the applicable law prohibited compound interest;  (2) neither the agreement nor the applicable law fixed a rate of interest, so there was not a situation where a prescribed above-market rate furnished an alternative approach to full compensation, (3) none of the Tribunal members came from legal cultures known to be formally opposed or informally hostile to compound interest; and (4) the jurisdiction of potential award enforcement in each instance was the US, so that the Tribunal need not have been concerned about a public policy obstacle to enforcement. Further, each Claimant was a significant corporate entity that presumably was active in financial markets, at least from time to time, as a borrower paying interest on a compound basis and as an investor deploying disposable cash in instruments that accrue compound interest.

So, on the basis that the trend in the law and outlook toward compound interest that is evident in investment arbitration should in principle influence commercial arbitrators in the same direction, I would ask two questions for the sake of discussion: (1) why are Claimants not claiming compound interest in suitable commercial cases as a matter of course, and (2) what should Tribunals do about this, if anything?

On the first question, I suppose that many advocates are simply not prepared for the issue, or, if they are advocating for the New York CPLR rate of nine percent or another above-market rate mandated by the law of the relevant jurisdiction, recognize that this rate on a simple interest basis may provide compensation exceeding that which might be calculated using the Claimant’s actual borrowing costs on a compound basis. Also, the Claimant’s counsel who knows of the legal uncertainty about the applicability of the CPLR nine percent rate in arbitrations might place an educated wager on the adversary’s and/or the Tribunal’s unawareness of this uncertainty —  by deliberately not making a request in the alternative for a compounded market-based interest rate.

Perhaps this is a dynamic peculiar to arbitrations, whether international or domestic, governed by New York law. But at least two other factors come into play that are not a function of an idiosyncratic interest rate environment. One is the ancient pull of the common law against compound interest, based in jurisprudence originating in a long-ago period when there was pervasive economic imbalance between debtors and creditors, lenders and borrowers, and compound interest came to be seen as a form of oppression. This legacy is well-described and annotated in the literature.  A second dynamic is that the advocate who knows she must persuade the Tribunal that her client’s aggressive position on damages should be seen as “conservative” may be reluctant to advance any position on the subject of interest that risks being seen as aggressive — even though, in the case of compound v. simple interest, the position is no more than a pragmatic combination of modern finance theory and practice, and principles of full compensation. The day has not quite yet come when the advocate for compounding of interest can be seen as simply invoking an accepted international standard.

On the question of what commercial arbitrators shall do about the all-too-common deficit of attention to the compounding issue, I have no clear solution but one principal discussion point. It is that we as arbitrators need to come to terms with whether the question of compounding is a special claim to be pleaded/requested at the risk that it will not otherwise be considered – a posture that gives a wide berth to a presumption of simple interest that does not seem to have a solid legal foundation. Arguably the question of simple v. compound interest is intrinsic to the Tribunal’s task once any request for an award of interest is made, even when made without specification that it should be compounded. Some arbitrators who will have already studied the literature and jurisprudence may be satisfied that the question of compounding interest is simply a component of the more general duty of the Tribunal recognized by the applicable law to provide “full compensation” to the Claimant.

But even where the arbitrators recognize that they have such a duty, the question of what to do when the Claimant is silent is not one that admits of a clear and easy answer. If the Tribunal detected a flaw in Claimant’s damages analysis whereby the Claimant’s plea for damages actually fell short of full compensation from the Tribunal’s perspective,  most Tribunals would refrain from taking the initiative to award more than the Claimant had demanded or to ask the Claimant to reconsider its request. The stated elements of the Claimant’s claim arguably form the upper boundary of the Claimant shall recover; the principle of full compensation mandates full compensation insofar as it is claimed in accordance with the applicable arbitral procedure. Should that position carry over to simple v. compound interest? Arguably not. If the Claimant fails to advocate for a particular interest rate, or an accrual date, still the Tribunal if asked to award interest must decide those issues. Should not the same be said of the compounding issue, i.e. that any request for an interest award necessarily puts before the Tribunal decisions concerning the conceptual elements of interest: accrual starting date, rate, simple or compounded, compounding period, and accrual ending date. This may strike some readers as an aggressive position on the arbitrator’s discretion to award compound interest where it has not been specifically requested nor specifically opposed. But if we accept that most applicable legal systems, and contemporary practice and principles, furnish no basis for a presumption that interest shall be awarded on a simple basis unless compound interest has been specially demanded, then it is legitimately a matter for arbitral discretion unless by agreement the parties have withdrawn that discretion.

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