Although I have concurred in the dispositive decisions contained in Chapter W of the Award, I feel obliged to leave on the record my dissent from certain parts of the reasoning.
I do not consider it part of my mandate as arbitrator to assess the performance of any person appearing in the course of the proceedings with respect to, for instance, intelligence, enthusiasm or eloquence, except as required for the evaluation of evidence. Consequently, I have not contributed to any such assessment.
In the course of this arbitration, a number of questions regarding facts and circumstances have been raised by the Tribunal, rather than by either party. Examples may be found under paragraph I Main Issues of Liability of the 24th Order of 8 February 2011, which reflects the Chairman's closing remarks at the end of the hearing that took place in December 2010. The Parties have not objected to such questions being raised by the Tribunal, but, in my opinion, it would have been preferable not to deal in the Award with each and every one of the 49 questions emanating from the Tribunal. I should have preferred to limit the Award to the dispute, its facts and circumstances, as pleaded by the Parties.
I should have preferred to eliminate from the reasons those considerations which arise from the experience of the arbitrators and which have not been introduced and discussed by the Parties. Limiting the Award in that respect would have made it shorter and the reasoning less speculative. I would especially have avoided the testing of hypotheses which have not been introduced by the Parties.
When concurring in the majority’s decision on the allocation of costs, I have not based my conclusion on the arbitration having been brought by the Claimant in bad faith. I do not hold that the Claimant has brought this arbitration in bad faith, and I object to the numerous references, in the adjudication of the claim, to the Claimant’s professional background. The Claimant is not a litigant in person but has been represented by experienced international counsel, some of whom have made a personal investment in the outcome of the dispute by accepting to work on a contingency fees basis. The fact that a claim is unsuccessful, and rejected in particularly strong terms by the majority of an arbitral tribunal, does not in itself permit the conclusion that the claim was not brought in good faith. In my opinion, there is every indication that the claim has been supported by the opinions of experts and was brought in good faith.
The reason why the Claimant must bear the costs of arbitration, including the costs for legal representation of those Respondents that have taken part in the arbitration, is that the Claimant's argument that the Respondents, as shareholders in IAT Pulkovo, shall be made responsible for costs in proportion to their shareholding, must fail. This failure is based on the simple fact, relied on by the Respondents, that the relevant clause of the Charter of IAT Pulkovo, the Company, commits only the Company which, as is undisputed, was liquidated in early 2008, shortly after the instigation of this arbitration. The Company has not been represented in this arbitration. Its shareholders are not liable for the debts of the Company and, consequently, the Claimant’s reliance on clause 20.10 is misplaced.
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