The lacking interest in interest rates: will the phase-out of LIBOR and negative rates go unnoticed by arbitration practitioners?

Abstract

Interest plays a crucial role in ensuring that the compensation obtained by the winning party does not diminish throughout the many years between the breach and enforcement of the award. Despite its importance, interest is often the last element considered by arbitration practitioners, who sometimes rely on popular interest rate benchmarks that worked well in the past. However, some familiar benchmarks might no longer achieve the intended outcome. We have reviewed public investment arbitration awards rendered in 2019–2020 and identified three issues: the use of LIBOR despite its imminent phase-out, the use of benchmarks that have become negative, and the omission of interest from awards rendered in favour of respondent states. While solutions may vary, we discuss mechanisms that may be used to review existing awards, alternative interest rate benchmarks that may replace LIBOR, and floors that might be helpful to deal with negative interest rates. Arbitration practitioners regret to see it when transactional lawyers negotiate arbitration clauses as ‘midnight clauses’. However, it often escapes the arbitration community that it adopts a similar last minute approach to interest rates. It is hoped that this article might help interest rates avoid the fate of being a ‘midnight remedy’.