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Collected and published by Jus Mundi. ICC has not contributed to this publication.

    Dissenting Opinion of Alejandro Ogarrio Ramírez España

    Arbitrator Alejandro Ogarrio Ramírez España dissents from the decisions of the majority of the Arbitral Tribunal contained in the Award, in the form of the following footnotes that could be added to the Award:

    Footnote after paragraph 83 of the Award:

    "Arbitrator Ogarrio respectfully dissents from the conclusion reached by the majority of the Arbitral Tribunal for the following reasons:

    i).- Clause first of the Agreement states: "(DEL MONTE) is the exclusive owner of the variety known as MD-2... for which reason it consents and decides to provide its seed to (INPROTSA)...".

    ii).- Clause 2 of the Agreement provides that "(INPROTSA) acknowledges that the MD-2 pineapple variety is property of (DEL MONTE) and, in this sense, acknowledges that all seed of this variety that will have been utilized in the farm is property of (DEL MONTE). In this regard, as long as (DEL MONTE) is the exclusive owner of this variety, (INPROTSA) guarantees that it shall only sell the MD-2 fruit grown in its farm to (DEL MONTE) or to any of its affiliates, pursuant to the terms of this agreement...".

    iii).- Paragraph 2 of clause 2 of the Agreement provides that: "In this regard... if for any reason (INPROTSA) ceases to sell this pineapple to DEL MONTE, or in the event that the agreement is terminated for any reason and at any time either before or at completion of its term, INPROTSA shall immediately cease production of this variety pledging to destroy or return to the Company the vegetative material owned by it:.."

    iv).- Throughout this arbitration, Del Monte repeatedly stated that even though it believed at the time of entering the Agreement that it was the exclusive owner of the MD-2 variety, after the Dole settlement in 2002 Del Monte expressly relinquished its ownership rights in the MD-2 variety (see Del Monte's Reply Memorial at page 19, paragraph 19 and page 20 footnote 7).

    v).- Del Monte also acknowledged (see Del Monte's Reply Memorial at page 17, paragraph 15) that the parties foresaw the possibility that Del Monte might one day lose its status as exclusive owner of the MD-2 variety and section 2 of the agreement foreshadows that possibility by stating that: "In this regard, as long as (DEL MONTE) enjoys exclusive ownership of this variety, (INPROTSA) guarantees that it shall only sell the MD-2 fruit grown in its farm to DEL MONTE or to any of its affiliates...".

    vi).- If Del Monte relinquished in the year 2002 its rights as exclusive owner of the MD-2 variety, then the obligation of INPROTSA to sell the MD-2 fruit exclusively to Del Monte and to cease production of the MD-2 variety in case the Agreement comes to an end no longer existed.

    vii).- The Agreement expired on May 8, 2013.

    viii).- After Del Monte relinquished its rights as exclusive owner of the MD-2 variety, and most definitely after the expiration of the Agreement, INPROTSA did not have the obligation to sell exclusively pineapples from the MD-2 variety to DEL MONTE, nor did it have the obligation to immediately cease production of such variety.

    ix).- By selling pineapples of the MD-2 variety to third parties after expiration of the agreement, and continue production of that variety, INPROTSA did not breach clause 2 of the Agreement."

    Footnote after paragraph 111 of the Award:

    "Arbitrator Ogarrio is of the opinion that:

    i).- Since INPROTSA did not breach the Agreement, no damages should be awarded against INPROTSA on an amount equal to its pineapples' sales to third parties during the year 2014;

    ii).- The amount determined as damages to be paid by INPROTSA is not to compensate Del Monte for any profits that it might have lost, and it is not placing Del Monte in the position it would have been if INPROTSA had either returned or destroyed the seeds of the MD-2 variety. Del Monte did not argue or proved that it lost any revenue or profit, or the ability to sell the MD-2 pineapples; or that it lost market share; or that the price at which itself sold MD-2 pineapples was in anyway affected. The damages awarded are punishing INPROTSA for selling MD-2 pineapples after expiration of the Agreement.

    iii).- The injunction to Respondent from selling MD-2 pineapples to third parties is not based in the Agreement, since Del Monte has relinquished its rights to exclusive ownership of the MD-2 variety, and INPROTSA does not have, after expiration of the Agreement the obligation to sell exclusively MD-2 variety pineapples to Claimant.

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