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Compensation with a Chess Clock?: The Interaction of Statutes of Limitation with the Calculation of Damages in Investment Arbitration »

Andrés Eduardo Alvarado Garzón
This chapter examines how the calculation of damages has become a thorny issue in international investment arbitration. Undisputedly, time plays a fundamental role in the calculation of damages because it influences projections, interest rates, and even sets the specific date at which the arbitral tribunal must value the damages caused by a state's measure. By the same token, time also has a crucial role in the temporal scope of the tribunal's jurisdiction (jurisdiction ratione temporis), for instance, in the application of statutes of limitation. The chapter posits that the statutes of limitation do not necessarily prevent arbitral tribunals from considering circumstances outside the limitation period as background information for the calculation of damages. Certainly, one may consider that, in doing so, arbitral tribunals may exceed their jurisdiction ratione temporis. However, this is not always the case. The chapter then presents the nature and application of statutes of limitation in investment arbitration. It also considers time considerations in calculation of damages, as well as the interaction of statutes of limitation with the calculation of damages.