- 57 - of on the date of expropriation [the former being a consequence of an unlawful expropriation]), or a value measured to any degree by loss of profit, or both, because the former is consistent only with unlawfulness and the later may suggest it (particularly to Kuwait). * * * Mr. Brower also believes that other factors would have influenced Kuwait to avoid any explicit compensation for lost profits. Among those factors were (1) American involvement in encouraging Kuwait into the arbitration and (2) OPEC’s stated policy that compensation to Western oil companies should be based only on book value and that any other basis for compensation, including, in particular, any valuation measured by lost profit, should be refused. He believes that Kuwait would have been reluctant to agree openly to an award inconsistent with OPEC’s policy, particularly against a background of what other states important to Kuwait might have characterized as “American pressure.” Mr. Brower also takes note of the separate opinion of Judge Fitzmaurice, who agreed with the operative section (which consists only of the actual award of a lump sum of $179,750,764), while, at the same time, finding that the expropriation was irreconcilable with the stabilization clauses and thus, Mr. Brower concludes, unlawful. Mr. Brower concludes that Judge Fitzmaurice agreed with the operative section because, in his view, it constituted proper compensation for an unlawful expropriation.Page: Previous 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 Next
Last modified: May 25, 2011