Abaclat and Others v. Argentine Republic, ICSID Case No. ARB/07/5 (formerly Giovanna a Beccara and Others v. The Argentine Republic), Statement of Dissent of Dr. Santiago Torres Bernárdez to Procedural Order No. 32 (August 1, 2014)
I am unable for reasons of principle to join my co-arbitrators in supporting the above Order which I consider in several respects quite unbalance and detrimental to the right of defence of the Respondent Party.
As concerns individual Claimants and the Respondent’s request to examine each Claimant (points 1 and 3 of the decisional part)
1. In point 1 of the Order, the majority finds it appropriate to proceed first with regard to the “Verified Claimants who are not subject to any withdrawal request” and to defer its ruling on all remaining Claimants until after its decision on the said Verified Claimants. In the first place, I cannot but expressed my surprise for the adoption by the majority of a ruling approach on the pending ratione personae individual jurisdiction and admissibility issues before any deliberation (either as a whole or in part) by the Tribunal on the merits of that matter.
2. Secondly, the distinction introduced by the majority between “Verified Claimants who are not subject to any withdrawal request” and the rest of the alleged Claimants is based, according to the reasoning of the Order, upon the final verification report of Dr. Wühler, a person appointed by the majority as sole Expert of the Tribunal with the sole support of the Claimants, namely of the Party having submitted the materials supposed to be the object of the verification. I have explained in a Dissenting Opinion issued at the time of Dr.Wühler’s appointment, and reiterated in subsequent statements and at the hearing, that such a verification procedure adopted without the consent of both Parties, and in the face of the manifested opposition of the Respondent, is an act adopted by the majority in breach of Article 43 of the ICSID Convention. The Respondent having maintained all along until the present its opposition to the said verification procedure the said breach has not been cured and, consequently, Dr. Wühler’s final verification report partakes the same original vice as his appointment. Therefore, the report is inadmissible as the basis of any ruling by the members of the Tribunal on the pending ratione personae individual jurisdictional and admissibility issues.
3. In the light of the above, I consider that the Respondent’s request for examination of each Claimant to be in order. By rejecting it (point 3), the majority adds to the breach of the above Article 43 a further decision detrimental to the Respondent’s right to verify the fulfilment by each alleged Claimant of the conditions required to be a Claimant in the present case as defined in the 2011 Decision on Jurisdiction and Admissibility. In particular, because the lack of access to the originals of the documents fed in the Database (which has had several versions), the numerous changes - with and without authorization - introduced therein by the Claimants and the very scope of Dr. Wühler’s report which excludes, for example, the verification of the authentication of the signatures. This is why, in my opinion, the Tribunal should arbitrate an appropriate procedure for the Respondent’s examination, under its control, of each of the individual remaining alleged Claimants as requested.