Reimagining the Damages Valuation Framework Underlying Fair and Equitable Treatment Standard Violations through a Three-Stage Contextualized Approach

Abstract Damages have been described as ‘the poor cousin of liability’.3 Yet damages valuation plays an essential, albeit often controversial, role in investor–State arbitration. Quantum questions require the participants—parties, counsel, experts and especially arbitrators—to think creatively critically about applicable framework underlying valuation. Consistency rigor tribunal’s approach to contribute good administration justice a case. With that goal mind, this article introduces more structured legal arising from breaches fair equitable treatment (FET) standard, which does unique nature standard avoids ‘horse trading’ among tribunal members. Arbitrators may be inclined apply methodology associated with expropriation wholesale, or slightly modified form, FET claims notwithstanding fundamental differences between other standards, including regard level harm suffered by investor. A featuring multiple stages must take account these give factors such contributory fault date their proper place through rigorous reasoning, lest outcome, itself, compromised over- undercompensation.