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Hrvatska Elektroprivreda d.d. v. Republic of Slovenia, ICSID Case No. ARB/05/24, Individual Opinion of Jan Paulsson (June 12, 2009)

Published: 
June, 2009
Jurisdictions: 
Slovenia
Practice Areas: 
Investment Disputes,
ICSID,
Dissenting and Separate Opinions
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  1. Incidental divergences with fellow arbitrators do not, in my view, necessarily require written expression. I have never before felt impelled to dissent. In this instance, I unfortunately find myself in disagreement with respect to the decisive proposition advanced by my two esteemed colleagues, which as far as I can see could be obtained only by an impermissible rewriting of the Treaty we are bound to apply. Given my duty to exercise independent judgment, I fmd it impossible to subscribe to the decision, and necessary to record my reasons for differing. My Individual Opinion is lengthy, because it seems fair that I should not content myself with criticising what I view as the majority's decisive error (this can be done, as will be seen, in a few paragraphs). I thus also (i) set out what I view as the proper solution and (U) expose a number offausses pistes.