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. The Tribunal ultimately rejected DCF methodology entirely, along with each of the other valuation approaches proposed by Claimants other an “comparable companies.” Â A full examination of the report of Russia’s valuation expert would be necessary to understand the Tribunal’s decision to accept that report as a decisive refutation of Claimant’s DCF analysis. But it is evident from the Award that the Tribunal’s determined that it could not rely upon historical information used as inputs to the DCF analysis, that it could not be confident that Claimant’s DCF analysis reliably captured all of Yukos’s operating expenses, and that Claimant’s DCF model did not, in the estimation of the Tribunal, take into account business risks that Yukos would have faced as a going concern had it not been effectively dismantled by the Russian State in 2004. (Yukos Universal Limited (Isle of Man) v. Russian Federation, PCA Case No. AA 227, Final Award dated July 18, 2014).
2. A Canadian mining investor called Gold Reserve and the Government of Venezuela, arbitrating over alleged taking or interference with mining concessions, agreed in principle on the use of DCF methodology — but not its exclusivity as the sole proper valuation approach. Claimant — perhaps concerned about relying too heavily on DCF to value an asset with no earnings history and many contingencies affecting its future profitability — advocated a weighted three-method approach assigning 50 percent weight to DCF, 35 percent comparable companies, and 15 percent comparable transactions. Venezuela urged the Tribunal to use DCF only, because the proposed comparables were not very comparable and the criteria offered to make adjustments based on the comparables to value the assets at issue were not reliable. The Tribunal on this point ruled for Venezuela, and used only the DCF approach. As would also be the case in the Mobil-Venezuela arbitration discussed below, the DCF experts differed on “country risk” for purposes of the discount rate, and took opposite sides of the question whether the market’s perception that Venezuela was a country that might nationalize natural resources assets was an appropriate risk factor or an impermissible charge against value based on conduct — i.e. expropriation without prompt adequate and effective compensation — that was prohibited by the BIT. Here the Tribunal agreed with Claimant to a degree, holding that the risk of unlawful expropriation should not be taken into account in the discount rate, but nevertheless considered that other political risks of doing business in Venezuela warranted a country risk factor significantly greater than what Claimant’s expert proposed. Claimant’s expert had advocated a valuation of $1.3 billion, and the Award was $713 million, with $130 million of the downward adjustment attributable to the Tribunal’s partial acceptance of Venezuela’s position on “country risk.” (Gold Reserve, Inc. v. Venezuela, ICSID Case No. ARB (AF)/09/1, Award dated Sept. 22, 2014).
3. Mobil and the Republic of Venezuela, arbitrating over nationalized oil exploration concessions, agreed upon the utility of DCF but stood very far apart on the discount rate, Mobil’s expert urging 8.7 percent while the Republic’s expert urging nearly 20 percent. Accounting for most of the gap was “country risk,” and in particular the very risk that came to fruition and provoked the arbitration, i.e. that Venezuela would opt to nationalize petroleum exploration. Â That risk shoud be omitted from the discount rate, argued Mobil, because including it would in effect take a negative charge against the value of the assets for pre-expropriation steps taken by the Government that diminished value because they foretold a potential expropriation. Factor in that risk, argued the Government, because any hypothetical willing buyer who might have thought about buying Mobil’s oil concessions in Venezuela before the Government acted, would have factored the risk of expropriation into her bid. Citing decisions of a number of other investment tribunals, this Tribunal sided with Venezuela on the discount rate “country risk” question. (Venezuela Holdings B.V. and Mobil Cerro Negro Holding Ltd. et al. v. Venezuela, ICSIDE Case No. ARB/07/27, Award dated Oct. 9, 2014).
4. British Caribbean Bank and the Government of Belize, arbitrating over deprivation of the Bank’s right to repayment of its loans to a telecoms firm, argued over the consequences of the Bank’s decision not to submit any expert valuation report. The Bank argued that its loan was expropriated and that, perforce, the fair market value of the expropriated property was the principal and interest due on the loan. Not so, said Belize, the FMV of the expropriated loan is what a willing buyer would pay to own the loan, which is not necessarily the face amount plus interest, and so if there is no valuation report, the Claimant should lose on damages. On the expropriation claim, the Tribunal agreed with Belize, but that is not the end of the story. Â Â The Bank also had a fair and equitable treatment (FET) claim, prevailed on this as to liability, and on damages argued that whereas the relevant treaty set forth no particular compensation standard, the standard furnished by international law is simply to provide reparation sufficient to cancel out the economic effects of the unlawful act. Â The Bank said no valuation report was needed for this FET claim, that the sum sufficient to provide such reparation is the principal of the loan plus interest. The Tribunal agreed, and this was the sum awarded. (British Caribbean Bank Ltd. v. Belize, PCA Case No. 2010-18, Award dated Dec. 19, 2014).
5. Romania, arbitrating with an investor of US nationality over impairment of its State-granted concession to sell consumer goods from kiosk locations throughout the country, insisted that the investor’s DCF valuation should be rejected because it was premised on the thesis of expropriation, which Romania contended had not occurred, and further because the Claimant was not a going concern and indeed had a history of losses and its prospects for future earnings were uncertain. The Tribunal sustained Claimant’s FET claim while rejecting its expropriation claim, and stated that it was rejecting the DCF approach in part because it had rejected the expropriation claim. But evidently the main rationale for rejection by the Tribunal of the DCF valuation was the Claimant’s history of losses and uncertain future prospects. As a result, a DCF valuation of $223 million per Claimant’s expert was rejected in favor of an award (on the principal claim) limited to Claimant’s actual investment of $7.5 million. (Awdi v. Romania, ICSID Case No. ARB/10/13 (Award dated March 2, 2015).
6. Following the lead of the Mobil Cerro Negro Tribunal as discussed above, another Tribunal addressing expropriation by Venezuela of oil service industry assets accepted the notion that a hypothetical pre-expropriation willing buyer would take into account in evaluating political risk the attitude of the Republic toward possible nationalization of petroleum industry assets. Here the Republic urged a 14.75 percent “country risk” premium in the discount rate, and this was accepted by the Tribunal as “conservative” — at least by comparison to the 18 percent “country risk” premium endorsed in the Mobil Cerro Negro Award. (Tidewater Investment SRL et ano. v. Venezuela, ICSID Case No. ARB/10/5, Final Award dated March 13, 2015).