- 58 - Taking all of the above into consideration, Mr. Brower is of the opinion that the tribunal reached a compromise (in part to obtain unanimity) whereby it (1) found Kuwait to have acted lawfully, notwithstanding that, doctrinally, that finding was highly questionable; and (2) structured the compensation so that it would not, on its face, reflect either (A) a value as of the date of the award or (B) any value measured by loss of profit; but (3) supplied such compensation de facto, in both respects, in a manner that would not be obvious, viz, by providing for the “level of inflation” adjustment. 6. Respondent’s Position Respondent’s position is that extrinsic evidence is unnecessary: The basic problem with petitioner’s argument is that it is based on factual claims which directly contradict the text of the Award. * * * The Award does not state or imply that the Tribunal used the inflation factor to “disguise” a particular type of compensation, and there is simply no reason to find otherwise. * * * We have, however, found that the award is ambiguous, and we have considered extrinsic evidence, viz, Mr. Brower’s expert testimony. Respondent neither called any witness to rebut Mr. Brower nor discredited his testimony by cross-examination. On brief, respondent attempts to rebut Mr. Brower’s conclusion that the tribunal could not, within the range of $206,041,000 (the amount stated in section 3 of paragraph 178), have grantedPage: 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