Mainstream Renewable Power Ltd and others v Federal Republic of Germany - ICSID Case No. ARB/21/26 - Procedural Order No 3 - Dissenting Opinion Antolín Fernández Antuña - 7 June 2022
Reproduced from www.worldbank.org/icsid with permission of ICSID.
1. Absent compelling reasons, no respondent State should be imposed to go through full-fledged proceedings and plead the merits of the case in circumstances where the jurisdictional mandate is contested and not ascertained yet by the tribunal.
2. In the instant case, I have found no such reasons not to bifurcate. Thus, I respectfully dissent with the analysis and the decision of the majority that rejects the request for bifurcation and joins the preliminary objections to the merits, contained in Procedural Order No. 3 (“the Order”). An analysis grounded in the ICSID Convention and Arbitration Rules, the case law on bifurcation, and the facts and circumstances of the case currently in the record, leads to this dissenting opinion.
3. I hereby elaborate on the foregoing statements, starting with (i) some general considerations and the legal standard, followed by (ii) the application of that standard to the case at hand, to (iii) conclude that bifurcation should be ordered.