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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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