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The award of interest on compensation awarded has been appropriately dealt with in Article 38 of the ILC's Articles on State Responsibility. The general principles applicable are the same for cases of diplomatic protection as for cases between States per se. Article 38 states:
1. 1. Interest on any principal sum payable under this Chapter shall be payable when necessary in order to ensure full reparation. The interest rate and mode of calculation shall be set so as to achieve that result.
2. 2. Interest runs from the date when the principal sum should have been paid until the date the obligation to pay is fulfilled. 155
Furthermore, what is said in the commentary to this Article correctly reflects the state of the law. 156
Interest is not an autonomous form of reparation, nor is it a necessary part of compensation in every case. The principal sum awarded in compensation may, however, be supplemented by an award of interest, depending on the circumstances of the case. An award of interest may be required in some cases in order to provide full reparation for the injury caused by an internationally wrongful act (p. 316) and it is normally the subject of separate treatment both in claims for reparation and in the awards of tribunals. Support for a general rule favouring the award of interest as an aspect of full reparation is found in international jurisprudence. For example, awards of interest were made in the Illinois Central Railroad Case 157 and the Lucas Case. 158 An award of interest was also dealt with in Administrative Decision No. III 159 by the United States-Germany Mixed Claims Commission. In The SS Wimbledon, the PCIJ awarded simple interest at 6 per cent as from the date of judgment, on the basis that interest was only payable ‘from the moment when the amount of the sum due has been fixed and the obligation to pay has been established’. 160 As a general principle, an injured State is entitled to interest on the principal sum representing its loss, if that sum is quantified as at an earlier date than the date of the settlement of, or judgment or award concerning, the claim and to the extent that it is necessary to ensure full reparation. Thus, interest may not be allowed where the loss is assessed in current value terms as at the date of the award. 161
Issues concerning the award of interest have frequently arisen before international tribunals, both in cases where the underlying claim involved injury to private parties and where the injury was to the State itself. Thus, in the M/V Saiga (No 2) Case the ITLOS awarded interest at different rates in respect of different categories of loss. 162 In Islamic Republic of Iran v United States of America (Case No A-19), the Iran-US Claims Tribunal acting as the full tribunal held that its general jurisdiction to deal with claims included the power to award interest, but declined to lay down uniform standards for the award of interest on the ground that this fell within the jurisdiction of each Chamber and related ‘to the exercise … of the discretion accorded to them in deciding each particular case’, further explaining on the principle involved that:
claims for interest are part of the compensation sought and do not constitute a separate cause of action requiring their own independent jurisdictional grant. This Tribunal is required by Article V of the Claims Settlement Declaration to decide claims ‘on the basis of respect for law’. In doing so, it has regularly treated interest, where sought, as forming an integral part of the ‘claim’ which it has a duty to decide. The Tribunal notes that the Chambers have been consistent in awarding interest as ‘compensation for damages suffered due to delay in payment’… Indeed, it is customary for arbitral tribunals to award interest as part of an award for damages, notwithstanding the absence of any express reference to interest in the compromis. Given that the power to award interest is (p. 317) inherent in the Tribunal's authority to decide claims, the exclusion of such power could only be established by an express provision in the Claims Settlement Declaration. No such provision exists. Consequently, the Tribunal concludes that it is clearly within its power to award interest as compensation for damage suffered. 163
This tribunal has not awarded interest in certain cases, eg where a lump-sum award was considered as reflecting full compensation and where other special circumstances existed. 164
Decision 16 of the Governing Council of the UNCC dealt with the question of interest. It provided that:
1. 1. Interest will be awarded from the date the loss occurred until the date of payment, at a rate sufficient to compensate successful claimants for the loss of use of the principal amount of the award.
2. 2. The methods of calculation and of payment of interest will be considered by the Governing Council at the appropriate time.
3. 3. Interest will be paid after the principal amount of awards. 165
The provision favours the award of interest where necessary, to compensate a claimant. At the same time it allows for flexibility. Clearly, interest as a form of compensation is regarded as a secondary element subordinated to the principal amount of the claim. This is so, though an important point is that an injured State or alien is not automatically entitled to the payment of interest. The trend of international decisions and practice is towards greater availability of interest as an aspect of full reparation. It is clear that the awarding of interest depends on the circumstances of each case essentially in terms of whether an award of interest is necessary in order to ensure full reparation. This approach of international tribunals reflects a general principle of law which emerges from the practice of various legal systems.
As regards compound interest as opposed to simple interest, the general view of international courts and tribunals has been against the award of compound interest, even though they may hold claimants to be normally entitled to compensatory interest. For example, the Iran-United States Claims Tribunal has consistently denied claims for compound interest, even where the claimant had suffered losses through compound interest charges on indebtedness associated with the claim. In the RJ Reynolds Tobacco Co Case the tribunal failed to find
any special reasons for departing from international precedents which normally would allow the awarding of compound interest. As noted by one authority, ‘[t]here are few rules within the scope of the subject of damages in international law that are better settled than the one that compound interest is not allowable’… Even though the term ‘all sums’ could be construed to include interest and thereby to allow compound interest, the Tribunal, (p. 318) due to the ambiguity of the language, interprets the clause in the light of the international rule just stated, and thus excludes compound interest. 166
Consistent with this approach the same tribunal has gone behind contractual provisions appearing to provide for compound interest, in order to prevent the claimant gaining a profit ‘wholly out of proportion to the possible loss that [it] might have incurred by not having the amounts due at its disposal’. 167 Thus, the weight of authority supports the view of Arbitrator Huber in the British Claims in the Spanish Zone of Morocco Case that:
the arbitral case law in matters involving compensation of one State for another for damages suffered by the nationals of one within the territory of the other … is unanimous … in disallowing compound interest. In these circumstances, very strong and quite specific arguments would be called for to grant such interest … 168
It has been argued that the principle should show greater flexibility on the ground that ‘compound interest reasonably incurred by the injured party should be recoverable as an item of damage’. 169Indeed, arbitral tribunals have supported this view in some cases. 170 But in terms of the preponderant precedents in international law it cannot be said that there is any entitlement to compound interest in the absence of special circumstances which justify some element of compounding as an aspect of full reparation.
The actual calculation of interest on any principal sum payable by way of reparation raises complex issues concerning the starting date (date of breach, 171 date on which payment should have been made, date of claim or demand), the terminal date (date of settlement or award, date of actual payment) as well as the applicable interest rate (rate current in the respondent State, in the applicant State, international lending rates). In fact, there is no uniform approach, internationally, to questions of quantification and assessment of amounts of interest payable. In practice the circumstances of each case and the conduct of the parties strongly affect the outcome. As the Iran-United States Claims Tribunal has observed, such matters, if the parties cannot resolve them, must be left ‘to the (p. 319) exercise … of the discretion accorded to [individual tribunals] in deciding each particular case’. 172 On the other hand, it is to be noted that the present international practice is somewhat unsettled. Article 38 of the ILC's Articles on State Responsibility chooses a solution indicating that the date from which interest is to be calculated is the date when the principal sum should have been paid, while interest runs from that date until the date the obligation to pay is fulfilled. As for the interest rate and mode of calculation, they must be set so as to achieve the result of providing full reparation for the injury suffered as a result of the internationally wrongful act.
Where a sum for loss of profits is included as part of the compensation for the injury caused by a wrongful act, an award of interest will be inappropriate if the injured State would thereby obtain double recovery. A capital sum cannot be earning interest and be notionally employed in earning profits at one and the same time. Thus, interest may not be awarded on profit-earning capital over the same period of time. However, interest may be due on the profits which would have been earned but which have been withheld from the original owner. 173
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