Introductory considerations

I wish to state at the outset that I fully subscribe to the decision proposed by the President of the Tribunal. I find the award to be well founded, since the question of most-favored nation (MFN) treatment is dealt with much more judiciously than in prior cases, in particular Maffezini1 and Siemens (Decision on Jurisdiction). The latter decision was directly based on the former and involved excessive procedural complications.

I am of course aware of the arguments put forward both in the Maffezini case, with which I am familiar and which I have studied closely because it related particularly to Galicia, where I was born and where I live,2 and in the Siemens case.3 I participated in the latter decision, including of course the Decision on Jurisdiction, and endorsed the opinion of the other members of the tribunal specifically in order to ensure the smooth internal functioning of the tribunal. My disagreement related only to aspects with greater actual relevance, repercussion, and substantive content. I had disagreed with many other essential aspects but without success, for the obvious reason that I was in the minority in that arbitration which – I repeat – was marred by excessive procedural complications. If I could, I would of course reveal them in greater detail but I cannot now describe them in order not to distract attention from this arbitration and for reasons of confidentiality. Ultimately, these actually required a revision of the award. In addition, my failure to dissociate myself from the formal aspects of the jurisdiction decision can easily be explained by the fact that in practice there was no point in expressing any dissent because the other tribunal members were in full agreement. I explained my reasoning on that occasion but my explanation of January 30 was not duly taken into consideration at the time.4