I write this Separate Opinion as I agree with the conclusions of my respected colleagues but arrive at the conclusions through different processes of reasoning on the issue of admission under Article 2(1). I agree with the reasoning and conclusions in the Award on the MFN issue. I take the contested issues presented to the Tribunal to be:
(i) Whether the Bank of Indonesia has admitted the Claimant’s investment in such a manner as to satisfy the requirement in Article 2(1) of the UK-Indonesia BIT (the Treaty).
(ii) Whether the investment made by the Claimant through Chinkara Ltd is an indirect investment and whether such an indirect investment can be granted admission under Article 2(1) of the Treaty.
(iii) Whether the MFN provision in the treaty enables the Claimant to access treaties with less stringent admission procedures.
The relevant arguments made on the issues are well summarized in the Award and are not repeated in this Opinion, except to the extent necessary. This Opinion concentrates on the legal issues involved rather than the factual issues. It finds that, as a matter of law, the arguments advanced by the Claimant are not supportable. Where relevant, it is pointed out that even if supportable, the facts advanced by the Claimant do not establish a case on the basis of the interpretations advanced by him. I am in agreement with the analysis of the facts and the conclusions reached in the Award.