Reproduced from www.worldbank.org/icsid with permission of ICSID.
DISSENTING OPINION OF MR. GABRIEL BOTTINI
14 October 2022
1. While I agree with most of the reasons and conclusions in the Decision on the Annulment Application, I disagree with my esteemed colleagues on a fundamental point related to one of the jurisdictional objections made by the Republic of Madagascar ("Madagascar" and in this annulment proceeding, "Applicant") in the arbitration. The reason is that it is manifest that the Tribunal did not decide Madagascar's jurisdictional objection based on the existence of an arbitration agreement under the International Chamber of Commerce ("ICC") arbitration rules, which Madagascar argued prevented the claimants in the arbitration from resorting to ICSID arbitration in respect of the entire dispute.
2. The annulment of an arbitral award is a serious matter, as is an allegation that an arbitral tribunal does not have jurisdiction. Regardless of the merits of a jurisdictional objection,1 the arbitral tribunal must decide the objection before exercising jurisdiction. Dealing with jurisdictional objections is not at the discretion of arbitral tribunals, but a necessary part of their mandate.
3. Here the Parties do not dispute that an arbitral tribunal exceeds its powers if it does not decide a jurisdictional objection that one of the parties has raised.2 For the reasons explained below, the failure to decide a jurisdictional objection and the Tribunal's excess of powers were manifest in this case. Thus, the Committee should have annulled the Award.
52. The Award in this case did not decide one of Madagascar's jurisdictional objections. The Committee's function is neither to determine why the ICC Primary Objection was not decided, which is completely unclear, nor to "form even a provisional view" on the merits of this objection.61 The crucial point is that Madagascar "should not have been deprived of a decision, one way or the other" on an issue that could clearly have made a difference to the outcome of the case.62 By failing to decide Madagascar's ICC Primary Objection, the Tribunal manifestly exceeded its powers in the sense of Article 52(1)(b) of the ICSID Convention, which should have resulted in the Award being annulled.