Dissenting Opinion of Dr. Torres Bernárdez

I object to Procedural Order No. 15 signed by the President on behalf of the majority of the Arbitral Tribunal for the following reasons:

Introduction

1. Paragraph 3 of PO No. 15 explains that the Order “aims to move forward with the appointment of one expert”; in paragraph

17 the majority declares that Dr. Wühler” is duly qualified to act as Expert in the present proceedings”; in paragraph 18 the majority asks him to prepare a “Work Proposal” in accordance to the terms and conditions set out in section D of the Order; and in paragraphs 26 to 30 the majority provides for the remuneration and expenses of the Expert in relation to the preparation of the “Work Proposal”, the “Draft Verification Report” and the “ Final Verification Report”.

2. It follows that the majority opted for a solution which divides the Tribunal, as well as now the Parties, with the consequential procedural effects of their disagreement for the appointment of one or more “experts’ of the tribunal”, in the light of the limited powers granted to the arbitral tribunals for getting direct evidence by Article 43 of the ICSID Convention and Rule 34 of the ICSID Arbitration Rules.