RJR Nabisco Inc. (Formerly R.J. Reynolds Industries, Inc.) and Consolidated Subsidiaries - Page 58

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               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 granted             





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