Expropriation and Compensation, Key Elements in Arbitration Lecture


The International Law Lecture Series, presented by Miami Law's International Graduate Law Programs, this week welcomed Pablo T. Spiller, a renowned quantum expert and the Jeffrey A. Jacobs Distinguished Professor of Business and Technology at the University of California, Berkeley, as he joined Jan Paulsson, Miami Law's most eminent arbitration expert, to discuss expropriation damages within the realm of legal and economic standards.

"We were thrilled to have such an incredible duo as part of our International Law Lecture Series," said Jessica Carvalho Morris, director of the International Arbitration LL.M. "Pablo Spiller, unrivaled among international quantum experts and our own Professor Paulsson, among the top two arbitrators in the world. We will continue to bring amazing speakers as part of the International Arbitration Program and our International Law Lecture Series. This is a great opportunity for students to be exposed to the top practitioners and thinkers in the world."

Spiller and Paulsson discussed what lawyers and arbitrators frequently get wrong in expropriation cases, including the inconsistencies between legal standards and compensation in investment treaty awards.

"The key legal principle for expropriation damages in my mind is Chorzow," Spiller said, citing a historical case that remains the starting point for analyzing issues involving reparation for violations of international law. "The purpose of the award is to wipe out all the consequences of the illegal act. But this standard has been applied indifferently and inconsistently, with tremendous implications."

Spiller spoke also about double-counting, increasing values in property post measures, and pre-judgment interest, and how Chorzow addresses those issues, as well as possible ways to restore consistency.

"There is a tendency in tribunals to make decisions down the middle," said Spiller. "That is a fundamental mistake. It would be great if they implemented decisions in a way in which you pick one or the other. This forces the parties to be more honest."

Acknowledging that the devil lies in the economic details, Spiller praised tribunals such as the one in Zurich, and his final thoughts were posed as questions: What goes into making the standards of international law as it relates to regulatory discretion? How much discretion can a tribunal have before becoming arbitrary? Can a government come in and make decisions?

Professor Paulsson, who was recently ranked as one of the world's top two arbitrators by The International Who's Who of Commercial Arbitration, gave the closing statements. Professor Paulsson asked the audience to question whether there should be more law or more politics in international arbitration, and to recognize that a paradigm shift is occurring that people don't seem to be recognizing.

"Investors will not disappear – there will be different kinds of investors," Professor Paulsson said. "An investor that relies on the rule of law will also rely on his power."