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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.
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