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June 01, 2015

D(id you) C(alculate) F(airly)?: DCF Methodology in Recent Treaty Cases

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Responding to the anguished cries of readers for a succinct review of the fate of Discounted Cash Flow (DCF) valuation methodology in recent investment arbitrations — a review to be offered without payment of conference fee, airplane fare, or subscription — Arbitration Commentaries steps to the lectern and reports: 1. In the now-legendary Yukos case, the controlling shareholders of the erstwhile oil colossus advanced DCF valuation as one of four alternative valuation methods, along with “comparable companies” and “comparable transactions” valuations as of the same date as the DCF valuation, and a “market capitalization” approach as of an earlier date….
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June 01, 2015

Judicial Pro-Arbitration Injunctions: Re-Thinking “Probability of Success”

When the U.S. Second Circuit Court of Appeals speaks about arbitration, here at Arbitration Commentaries the ignition key turns, and the engine of this rusty old four-by-four squeals, wheezes, and eventually springs to life. This month’s fuel is judicial provisional relief in aid of arbitration. (Benihana, Inc. v. Benihana of Tokyo, 2015 WL 1903587 (2d Cir. April 28, 2015)). First, a few facts about the case. It is about restaurants and hamburgers. In simplified form with some innocent liberties taken: Franchisor asserts menu control rights over franchisee, which franchisee allegedly violates by allegedly selling hamburgers in its franchised restaurant in…
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May 02, 2015

Miami Vice

Just when you thought America’s international arbitration lawyers had finally moved on from the exhausted (but not quite conclusive) debate over whether the federal international judicial assistance statute codified at 28 USC §1782 (“1782”) applies to private international commercial arbitrations, along come two decisions from two federal district courts, involving essentially one coordinated quest for discovery in the same arbitration.  Each federal district court decision reaches the same result: thumbs down on the proposed use of 1782 for non-party discovery in private arbitration because a private, contract-based Arbitral Tribunal is not the type of “tribunal” Congress had in mind when,…
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April 02, 2015

Bifurcated Arbitration and Interlocutory Review: Once More to the Well

Dear Readers, if you turned to these pages to learn about recent decisions in big, impactful international investment disputes over (lawful) expropriation of maritime assets in Venezuela or (alleged) denial of justice to American energy titans in Ecuador, you may be disappointed. (But see “Nice Try Venezuela”, below). This post is inspired by a gritty quotidian domestic dispute, between a Miami limousine service and one of its drivers — the cherubic talkative type who might ferry an eminent international arbitrator to Miami International Airport for an early morning flight to Washington. But seriously. We need to talk — about the…
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April 02, 2015

The Strange Career of the Reasoned Award

“The Yankees win!! The….Yankees…..WIN!!!“ New Yorkers of a certain sporting obsession will recognize this as the triumphal incantation that concludes their radio baseball broadcasts, on the not-so-frequent occasions when the Yankees do, as they once did prodigiously, win. New York arbitration lawyers will also recognize this as the form of a “Standard Award” in domestic commercial arbitration. Declare a winner, and sign off. Those of you seeking a primer or a refresher course in the architecture of American arbitration awards would, by reading Tully Construction Co. v. Canam Steel Corp., 2015 WL 906128 (S.D.N.Y. Mar. 2, 2015), be informed, or…
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April 02, 2015

Investment Arbitration Briefly Noted: Nice Try Venezuela!

Readers who watch American sports television while preparing briefs to ICSID tribunals will be familiar with a feature called “C’MON MAN!”, showing sports celebrities caught out in acts or declarations of startling incredulity. Surely this feature could be extended on occasion to the arguments of Host States opposing Investor expropriation claims. A case in point is the recent Award in Tidewater v. Venezuela, ICSID Case No. ARB/10/5 (March 17, 2015) (published at www.italaw.com) finding an expropriation, albeit of the lawful variety (once compensation would be determined and paid), of a maritime oil services business that had operated in Venezuelan waters…
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