"... I don't see any evidence that the ISCID will rule in our favor regarding so called, lost future profits."
I am not sure what you mean. Strictly speaking, none of the evidence that was presented to the arbitrators on lost profits has been revealed. In fact, no evidence presented at the arbitration has yet been revealed.
If you are questioning whether lost profits can be recovered in international arbitrations, the answer is unequivocally yes. Not only that, but lost profits is the primary type of damages that is recovered in international arbitrations where there has been an expropriation of property. That is without question. Whether the company will be able to prove lost profits is also without question in my mind. This is done through expert testimany on the cost of buliding a mine, the price of gold during the time the mine would have been in operation, the number of ounces estimated to be produced, the cost of producing the gold, and the like. As long as the expert has a reasonable basis for his conclusions on these issues, his testimpny is admissable. Only when his conclusions are purely speculative will they not be admissable. Thus, whether he can determine the exact price of gold in the future may be speculative, but whether he can deterrmine that the price of gold will not be less than 1600/oz for the life of the mine may not be. In this regard, our expert will discuss the many factors that relate to the future price of gold and the defense expert will question each of these and present his own conclusions.
Our arbitrator, John Gotanda, is one of the foremost experts on loss of future profits and his comprehensive article on this subject is worthwhile reading: http://www.cisg.law.pace.edu/cisg/biblio/gotanda2.html.
Apart from having Mr. Gotanda in our corner is the fact that lost profits should be accepted as a theory of damages by the other two arbitrators since it is accepted as a basic element of damages in international arbitrations. Whether they will believe our expert or the defense expert, who will color the testimony of our expert as speculative and inaccurate, is a credibility issue to be determined by them.
I guess I do not understand why the lost profits theory of recovery is constantly questioned when in fact there is no question that it exists as a basis of recovery.
