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concession did not forbid nationalisation, the stabilization
clauses * * * were nevertheless not devoid of all consequence,
for they prohibited any measures that would have had a
confiscatory character”; they, therefore, “created for the
concessionaire a legitimate expectation that must be taken into
account.” The tribunal reiterated, too, that from “the time when
its rate of production reached a satisfactory level, Aminoil was
in the position of an undertaking whose aim was to obtain a
‘reasonable rate of return’ and not speculative profits which, in
practice, it never did realize.” The tribunal stated further
that “over the years, Aminoil had come to accept the principle of
a moderate estimate of profits, and * * * it was this that
constituted its legitimate expectation.” Concluding, the
tribunal stated:
[The Tribunal] considers it to be just and reasonable
to take some measure of account of all the elements of
an undertaking. This leads to a separate appraisal of
the value, on the one hand of the undertaking itself,
as a source of profit, and on the other of the totality
of the assets, and adding together the results
obtained.
The tribunal concluded its discussion of principles and
methods by stating that it “is necessary in all cases to consider
the value of the assets as at the date of transfer, taking due
account of the depreciation they have undergone by reason of wear
and tear and obsolescence.” For reasons explained at length in
the Award, the tribunal rejected the net book values Kuwait
sought.
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