In certain cases compensation for loss of profits (lucrum cessans) may be appropriate. 120International and transnational tribunals have in fact included awards (p. 312) for loss of profits in assessing compensation: eg in the Cape Horn Pigeon Case, 121 the Delagoa Bay Railway Case, 122 the William Lee, 123 the Yuille Shortridge and Co Case, 124 and the Sapphire International Petroleum Ltd Case. 125 Loss of profits was featured in the Chorzów Factory Case itself, when the PCIJ decided that the claimant should receive the value of property by way of damages not as it stood at the time of expropriation but at the time of indemnification. 126 Awards for loss of profits as such have also been made in respect of contract-based lost profits in the LIAMCO Arbitration 127 and in some ICSID arbitrations. 128 Such cases illustrate the principle that lost profits may be payable as compensation. Nevertheless, lost profits have not as commonly been awarded in practice as compensation for accrued losses. Tribunals have been reluctant to provide compensation for claims with inherently speculative elements. According to the arbitrator in the Shufeldt Case, 129 ‘the lucrum cessans must be the direct fruit of the contract and not too remote or speculative’. In the ICSID Amco Asia Corp and Others Case, on the other hand, it was stated that ‘non-speculative profits’ were recoverable. 130
The UNCC also stressed the requirement for claimants to provide ‘clear and convincing evidence of ongoing and expected profitability’. 131 In assessing claims for lost profits of construction contracts, Panels of the UNCC have generally required that the claimant's calculation take into account the risk inherent in the project. 132 When compared with tangible assets, profits (and intangible assets which are income-based) are relatively vulnerable to commercial and political risks, and increasingly so the further into the future projections are made. In cases where lost future profits have been awarded, it has been where an anticipated income stream has attained sufficient attributes to be considered a legally protected interest of sufficient certainty to be compensatable. In considering claims for future profits the UNCC Panel dealing with certain claims stated that in (p. 313) order for such claims to warrant recommendation, ‘it is necessary to demonstrate by sufficient documentary and other appropriate evidence a history of successful (ie profitable) operation, and a state of affairs which warrants the conclusion that the hypothesis that there would have been future profitable contracts is well founded’. 133 This has normally been achieved by virtue of definite contractual arrangements or, in some cases, a well-established history of dealings. 134
In some cases lost profits have been excluded on the basis that they were not sufficiently established as a legally protected interest. In the Oscar Chinn Case a monopoly was not accorded the status of an acquired right. 135 In the Asian Agricultural Products Case, a claim for lost profits by a newly established business was rejected for lack of evidence of established earnings. 136 Needless to say, claims for lost profits are also subject to the usual limitations on the recovery of damages, such as causation, remoteness, evidentiary requirements, and accounting principles, which seek to discount speculative elements from projected figures.
There are several categories of loss of profits which may be distinguished. First, for example, lost profits may be from income-producing property during a period in which there has been no interference with title as distinct from temporary loss of use. This category involves claims for loss of profits due to the temporary loss of use and enjoyment of the income-producing asset. In these cases there is no interference with title and hence in the relevant period the loss compensated is the income to which the claimant was entitled by virtue of undisturbed ownership. Many of the early cases concern vessels seized and detained. In The Montijo an American vessel was seized in Panama. The umpire in the arbitration allowed a sum of money per day for loss of the use of the vessel. 137 In The Betsey, compensation was awarded not only for the value of the cargo seized and detained, but also for demurrage for the period representing loss of use. 138
The second category of claims relates to the unlawful taking of income-producing property which results in lost profits between the date of taking away of title and adjudication. In such cases lost profits have been awarded for the period up to the time of adjudication. In the Chorzów Factory Case (Merits) this took the form of re-invested income, representing profits from the time of taking to the time of adjudication. 139 In the Norwegian Shipowners Claim lost profits were similarly not awarded for any period beyond the date of adjudication. 140 Once the capital value of income-producing property has been restored through (p. 314) the mechanism of compensation, funds paid by way of compensation can once again be invested to re-establish an income stream. Although the rationale for the award of lost profits in these cases is less clearly articulated, it may be attributed to a recognition of the claimant's continuing beneficial interest in the property up to the moment when potential restitution is converted to a compensation payment. 141 This category is most commonly associated with the deprivation of property, as opposed to wrongful termination of a contract or concession. If restitution were awarded, the award of lost profits would be analogous to cases of temporary dispossession. If restitution is not awarded, as in the two cases referred to above, lost profits may be awarded up to the time when compensation is made available as a substitute for restitution.
The third category of claims for loss of profits arises in the context of concessions and other contractually protected interests. Here the profits anticipated and lost after the date of adjudication are awarded. Awards of lost future profits have been made in the context of a contractually protected income stream, as in the Amco Asia Corp Case, rather than on the basis of the taking of income-producing property. 142 In the UNCC's Report and Recommendations made by the Panel of Commissioners Concerning the Second Installment of ‘ E2 ’ Claims, dealing with reduced profits, the Panel found that losses arising from a decline in business were compensatable even though tangible property was not affected and the businesses continued to operate throughout the relevant period. 143In such cases lost future income has been compensated. In some cases, lost profits were not awarded beyond the date of adjudication, though for reasons unrelated to the nature of the income-producing property. In the Robert May Case, for instance, the concession had expired. 144 In other cases, circumstances giving rise to force majeure had the effect of suspending contractual obligations. 145 In the Delagoa Bay Railway Case 146 and in the Shufeldt Case 147 lost profits were awarded in respect of concessions which had been terminated. In the Sapphire International Petroleum Ltd Case, 148 and the LIAMCO Arbitration 149 (both transnational arbitrations) and in the Amco Asia Corp and Others Case 150 (an ICSID arbitration) awards of lost profits were also sustained on the basis of contractual relationships. In the case (p. 315) of contracts, it is the future income stream which is compensated, up to the time when legal recognition of entitlement ends. In some contracts this is immediate, eg where the contract is determinable at the instance of the State, 151 or where some other basis for contractual termination exists, or it may arise from some future date dictated by the terms of the contract itself. 152
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