On the other hand, all requirements of the Repondent for documents to be presented by the Claimant, with the exception of one document /ICC Arbitration Award case CME v. Železný, which however had been published on the internet earlier and thus known to the public/, were rejected by the two arbitrators contrary to the opinion of mine that I expressed during the internal discussion of the arbitrators. These rejected documents referred above all to illegal steps of the Claimant in obtaining confidential information, especially about preparing steps in this arbitration within the Media Council, through a private investigator company, this information came from an informant within the Media Council. By this negative decision the two arbitrators practically helped to the Claimant to continue this illegal practice, to the detriment of the Czech Republic. Naturally the Respondent insisted on his requirement and asked the Tribunal for the fairness, equality of arms and due process in these proceedings that the two arbitrators have not rendered to him. The Respondent had no processual defence against such disriminatory handling of him and therefore he has only declared that he continues to participate under protest, reserving however his rights. Further legal conclusions are in Art. XI. of this Dissenting opinion.
The fact that the two arbitrators pointed out in the Award only the "Authorities" presented by the Claimant, without mentioning that the Respondent presented also his "Authorities" is only further evidence of the unilateral way the two arbitrators prepared the Award. As far as the problem of judgments cited in the Award is concerned, I have ascertained later on that both arbitrators collaborated very closely also in this sphere of supporting documents, without informing me. This could be also seen from the fax of Mr. Schwebel to Dr Kühn of 29.8.200, where Mr. Schwebel informed Dr Kühn that he arranged sending of the original pages of FEDEX decision to Dr Kühn. Again without informing me at all and contrary to the principles of relations among the arbitrators, which are allways observed in European arbitration. I have never been given an occasion by Dr Kühn to present authorities and/or judgment that I know and that are in connection with the case.
Naturally the two arbitrators for smooth reaching of their above described target did not need any internal opposition in preparing the Award. Already during the proceedings this was the practice of Dr Kühn to discuss a lot of questions only with Mr. Schwebel without informing me, though this is basicly against the ethics of the arbitration. The Chairman should inform one arbitrator about all his conctacts and discussions with the other arbitrator. This violation of this principle by the Chairman was e.g. quite evident during the hearing in Stockholm, where three times he discussed with Mr. Schwebel processual matters and never informed me about the conents of their discussion though I have asked for it.
Most striking was the situation as to the preparation of the Award. During preparing the Award Dr Kühn several times, e.g. yet in June, what he conceded himself, contacted Mr. Schwebel and in a telephone conversation, a short time ago, he confirmed me that it was to my disfavour that they /both arbitrators/ could work on the Award earlier than me, this is again an unequality of the positions of the arbitrators.
And thereafter the hostile steps of these two arbitrators against me came to a head. I have obtained the draft of the Award on 30.7.2001, amounting to 175 pages. I have asked for enough time for preparing my standpoint /about fourteen working days/ and this was rejected by both arbitrators, asking me to give my standpoint "now", with the argument that any discussion as to the merits of the case was closed at the meeting of the arbitrators in Duesseldorf in June 2001. This was absolutely untrue, as in Duesseldorf there has not been reached any arbitrators' decision saying that the discussion was closed there.The onIy conclusion done there was that Mr. Schwebel and me would obtain the draft of the Award for our comments. The same idea was also expressed in the Chairman's letter of July 30, 2001, when he sent to the Arbitrators "the Partial Final Award for your review" and for response and suggestions.
point 11 - no assets invested by CME in the Czech Republic as defined in the Treaty, i.e no Dutch investments,
point 202 - no investment dispute under the Treaty,
point 204 - investments - no investments with rights under the Treaty, here is mentioned CEDC.
It is without any dispute that the initial investment that is initial capital contribution to the basic capital of ČNTS was made by CEDC, the total investment of CEDC can be ascertained from the Assignment Agreement CEDC - CME Media Enterprises B.V. dated July 28,1994 in the amount of 264 million Czech Crowns. Further there is no dispute about the fact that Central European Development Corporation Management Services GmbH /i.e. CEDC/ was a German company registered in Federal Republic of Germany. Naturally it is not relevant from where the respective money came, but who, i.e. which investor has brought the money and this was without any dispute CEDC, also according to the allegations for the Claimant.
It should be repeated that the conclusions contained sub b/ are conclusions referring to the legal basis of claims of the Claimant, i.e. this is not the question of jurisdiction, but the question of application of material law, i.e. application of the law of the Treaty by which the relations should be governed. So the judging of the investment of the CEDC should be done according to the German - Czech BIT and not on the basis stated in the Statement of claim, i.e. on the basis of the Dutch - Czech BIT.
Some additional remarks to this part of the Dissenting opinion:
As far as further alleged investments done by CME Media Enterprises B.V. and CME Czech Republic B.V. are concerned the burden of proof is to be borne by the Claimant, on the basis of the old principle "onus probandi incumbit actori" and it must be stated that the Claimant was not able to bear this onus.
The declaration of the witness Mr. Klinkhammer about investments in the amount of USD 140 milion was in this respect very foggy. The addition of the individual items of the investments mentioned in the Award does in no case result in USD 140 milion but also these items have not been proved. The Claimant would have to prove by documents all details concerning such investments, how he has carried out the investments, i.e. when, in which means /monetary or how/, in case of transferring money with proofs about such transfer etc. This has not been done and proving it is purely an obligation of the Claimant, since it is not the task of the Tribunal to invite the party to prove its allegations. There was therefore no further investment proved by the Claimant. It is very regrettable for me to state that instead of taking into consideration the proofs as the basis for decision, the two arbitrators take as proof what the Claimant only declares.
The fact whether the declaration of Mr. Klinkhammer has been challenged by the Respondent or not is of no legal importance for the decision of the arbitrators as in conformity with the UNCITRAL Rules it is really only the Tribunal that determines the materiality and weight of evidence, I repeat only that the allegations of the Claimant are no proof, as it was accepted by the two arbitrators..
German - Czech BIT of 2.October 1990 does not contain a provision that the investment can be done through an investor of a third state,
expenses of the member of the Tribunal bears the party that has nominated this member, Chairman of the Tribunal must be from a third state and approved by parties,
USA - Czech BIT - does not contain a provision concerning making the investments through investor from a third state,
proceedings can be instituted in case that the respective national or company /investor/ has not brought the dispute before the courts of justice or administrative tribunals of competent jurisdiction of the Party that is a party to the dispute.
Central European Development Corporation Management Services GmbH /further only CEDC/ is a company registered in Germany. i.e. a German Company. This company took part in negotiations in 1992, so it must have been constituted somewhere in 1991.
Central European Enterprises N.V. is a Lauder company registered in Dutch Antilles and this company was the only shareholder of CME Media Enterprises B.V. registered in the Netherlands in Amsterdam. This company CME Media Enterprises B.V. was in 1997 the only shareholder of CME Czech Republic B.V. and from the year 2000 the only shareholder of CME Czech Republic B.V. was the CME Czech Republic II B.V., the only shareholder of which was CME Media Enterprises B.V
The legal basis of the Czech Law was the Czech Act No. 468/1991 on operating radio and television broadcasting /further only "Act"/ containing following provisions important to be mentioned here:
§ 11/3 - only the person applying for a licence is a party to the licence proceedings.
Comments: Only CET 21 according to the law, was and could be, participant in licence proceedings. Also in the licence conditions, being a part to the licence, CEDC and Czech Savings Bank were mentioned only as participants to the partnership agreement, i.e. to the MOA.
§ 10/1 - licence authorizes its holder to broadcast in the scope and under the conditions set in it.
Comments: this means that the licence does not authorize to broadcast any other person, only the licence holder.
§ 3/1 - broadcasting operator is that who obtained authorization to broadcast....by being granted a licence under this Act.
Comments: It was only and exclusively CET 21 that was authorized to broadcast. Naturally it cannot be seen from this provision, to what extent the broadcasting operator-licence holder has had the right to use other entities for assisting him to broadcast. But surely it was not allowed that all rights and obligations would be transferred to a third person.
§ 10/2 - Licence is not transferable.
Comments: Neither CET 21 had the right to transfer the licence to somebody that means to make such a legal step, through which CET 21 would lose all rights that make the contents of the licence and there is no doubt that the contents of the licence is the right to use it, exploit and maintain.
CET 21 according to Art. 1.4.1 contributed as capital contribution to ČNTS the right to use, benefit from and maintain the licence, in other words brought the licence into ČNTS. According to the Czech Commercial Code the capital contribution becomes ownership of the company, i.e. ČNTS theoretically could be owner of the licence. But this is not valid as the licence is not transferable and according to §39 of the Czech Civil Code acts of law that are contrary to law are invalid /mandatory provision/.
Therefore the contribution of the licence as capital contribution to ČNTS was invalid. On the other side the company ČNTS was duly registered in the Commercial Register and therefore was duly constituted according to the Czech Law.
- CET 21 is holder of the licence and operator of television broadcasting with the licence,
- the parties have based this on the fact that licence is non-transferable, therefore the rights and obligations arising under the licence are not subject of a contribution by CET 21 to ČNTS,
- there was confirmed exclusivity to the favour of the ČNTS
- economic results will be retained by ČNTS.
As far as the relations of CET 21 and ČNTS in operating the TV NOVA are concerned they were, have been and are till today governed by the MOA 1993 that is in validity till today. In spite of this fact the Claimant has never used this fact for starting legal steps against CET 21, he preferred to sue the Czech Republic.
Firstly the amendment of the Media Law through Act No. 301/1995. should be mentioned
This during the proceedings very criticised Act did in no case change the legal position of the CME. There were two basic changes:
- replacing the word "licence holder" by "licensed broadcaster",
/this has in no respect changed the position of CET 21 towards ČNTS or CME/
- giving to the licensee /TV broadcaster/ the right to ask for cancelling of conditions set by the Media Council to him
/this refers in this case especially to cancelling of conditions 17. and 18. - the annulling of these conditions was above all to the favour of ČNTS and CME and was done in order to avoid any control and influence of the Media Council into the operating, managing and economic solutions within the TV Nova - it is probable that this change of law has been reached by lobbying of CME and ČNTS through Dr Železný, in no case did this mean any deteriorating of position of CME or ČNTS/.
As far as the MOA 1996 is concerned it should be stated that the main reason was practically the same as the Agreement of 23.5.1996 that is only to confirm that the licence has not been transferred. For this reason it has been agreed with Dr Železný representing both CET 21 and CNTS that the respective passage of MOA shall be altered in that respect that CET 21 contributes the right to use, make subject of the company's benefit, and maintain know-how related to the licence, its maintenance and protection. Further there has been agreed a new Art. 10.8 that stresses again the exclusivity to the favour of ČNTS as to the know-how and goes further as it forbids to CET 21 any disposal with the licence.
I do not share the opinion of the two arbitrators that the transfer of rights to know-how means nothing. On the basis of the consultations with experts for intellectual property rights this kind of know-how means to collaborate with the other contractual party by handing over the immaterial know-how to the other party and in addition thereto to enable using of certain rights and to the other party to gain these rights fully legally.
§ 37, subparagraph 1 of the Czech Civil Code states expressly, as follows:
"Act in law must be done freely and earnestly, determinately and understandably, otherwise it is invalid."
- either there was no coercion from the part of the Media Council in that case the MOA 1996 has been concluded by all its signatories freely and is in validity and could not be the root of all evil, i.e. reason for alleged harm that the Claimant suffered,
- or the MOA 1996 has been signed under coercion from the part of the Media Council as it is the conception of the two arbitrators, in that case the MOA 1996 is null and void, therefore it could not have been the reason of the harm that the Claimant suffered, as the Claimant alleged, and the MOA 1993 remains in validity till today.
Secondly this Service agreement does not contain any substantial change, as to the relation between the parties CET 21 and CME that have been based on the MOA 1993. This Service agreement was only continuation of contractual anchoring of relations between CET 21 in the agreements of 23.5.1996 and of 4.10.1996.
There is one proof that this Service Agreement has been concluded absolutely freely between CET 21 and ČNTS. This is the letter of ČNTS of 13.7.1999 /presented in these proceedings/ prepared evidently by Dr Radvan, who, jointly with Mr. Vávra also signed it. This letter contains detailed description of relations CET 21 and ČNTS partly with respect to the Service Agreement and it is clear from this letter that the Service Agreement contains free conception of the ČNTS without any coercion from the part of the Media Council. And stress should be laid upon the fact that this is a letter of ČNTS, i.e. expressing the facts declared by ČNTS as right facts.
For the true description of all circumstances it should be stressed that the only reason for the arbitrary termination of this Service Agreement by Dr Železný, whereby any harm to ČNTS have been caused, was the alleged violation of this Service Agreement from the side of ČNTS. As to this termination there was not produced any evidence during the proceedings proving that the Czech Republic - the Media Council compelled Dr Železný to do it or contributed in any way to this termination. This step was a step done freely and exclusively by Dr Železný for the good order's sake it should be mentioned that there was no connection between this termination of the Service Agreement by Dr Železný and the MOA 1993 or MOA 1996.
As this starting of these proceedings is in the Award interpreted as unacceptable coercion from the side of the Media Council it is necessary to state the exact facts and legal conclusions in order to put the things right, as follows:
- that the administrative proceedings were started according to the Czech Code of Administrative Proceedings, i.e. before such proceedings are terminated no legal consequences of such proceedings exist, therefore starting such proceedings cannot be considered as a kind of pressure upon ČNTS,
- in case that these proceedings are terminated without final decision it means that it is a situation as if nothing happened, this principle is the same all over the world both in civil and administrative proceedings and criminal proceedings,
- the only reason of starting proceedings was the suspicion of the Media Council that ČNTS realises the TV broadcasting without authorisation, in no case the object of these proceedings was an attempt or intention of the Media Council to withdraw the licence from CET 21 and this was also never mentioned in any official document of the Council, this has never been proved and allegations in this respect are a pure phantasy of some persons around ČNTS and CME,
- for the above reasons this starting administrative proceedings and closing them without any final decision, i.e. only stopping the proceedings could in no case be a reason for a damage allegedly caused to ČNTS/CME or evidence of violating the Treaty by the Czech Republic /discrimination/,
- the administrative proceedings were stopped on the basis of the conclusion that everything had been brought into order in conformity with the law.
The starting of these proceedings was no illegal deed of the Media Council, it was based on suspicion that ČNTS carries out the television broadcasting without having the right to do so. This was mainly based on the fact that ČNTS had registered in the Commercial Register as object of business activities the television broadcasting on the basis of the licence granted to CET 21 /number of licence granted to CET 21 mentioned/.
Other reason was transfer of all broadcasting activities into the hands of ČNTS, because it meant the transfer of the licence. After everything bas been brought in order according to the requirements of the Media Council the proceedings have been stopped. These are the facts and all these rumours about the coercion are talking about unproved allegations. As from the time of starting these proceedings till to the time of stopping them there was never proved that at any stage of these proceedings there would be a danger of withdrawing the licence held by CET 21.
a/ according to the Czech Law the Media Council decides only in form of s.c. Administrative Decisions according to the Administrative Proceedings Code, only such decision is enforceable, however this letter was not such a decision., i.e. was not enforceable.
b/if this letter should have a legal significance it would have to be so that this letter should contain a resolution of the Media Council, i.e. interpreting of an opinion of the Media Council, as a whole, but such a resolution could come into validity only after voting in the Media Council, but this letter did not represent any resolution of the Media Council at all as no such resolution had been reached,
c/ this letter did not contain any decision directed against CET 21 or ČNTS/CME, this letter did not impose on CET 21 any obligation to do something, further the Media Council had no right to impose anything upon ČNTS since ČNTS was no legal partner towards the Media Council,
d/ when the Media Council expressed the opinion about the non-exclusive basis between the broadcaster and the service companies, this formulation surely did not mean to state, what is now wrong and what should be changed, as on the next page of this letter the Media Council states that everything has been put in order, no matter whether it was so or not, this is of no importance, since the most important fact was that the Council was content with the actual stage of things and relations.
Whether this letter has been written on the basis of initiative of Dr Železný or not is of no importance, since once more it should be repeated that from the legal point of view this letter has no legal consequences, as this letter does not represent a legally formal decision of the Media Council in conformity with the Administrative Proceedings Code.
Further it should be added that the letter of the Media Council was addressed to Mr. Vladimír Železný as executive of CET 21, as its partner - holder of licence, but at that time he was still managing director of ČNTS, so ČNTS was officially informed. But anyhow ČNTS and CME formally were not and could not have been partner to the Media Council and I repeat that therefore the Media Council had no right to order them what to do and what should not have been done. Only should the Media Council ascertain that ČNTS and/or CME violated the Media Law, Media Council could start administrative proceedings against them, but this was not the case.
- the proceedings and the Award are not in the sphere of the Anglo-American law and therefore the Tribunal is not bound by these decisions and, in addition thereto, these also cannot be considered as "international law", the s.c. authorities represent opinions of the individual persons, also this cannot be considered as international law, there are opinions always to the contrary and the opinions and judgments cited in the Award are often very far from the problems to be solved in this dispute,
- these decisions, so far I could ascertain, do not, as to a great part of them, refer to problems of BITs,
- great part of them are decisions presented by the Claimant, none of them has been presented by the Respondent, on the other hand decisions and /or authorities presented by the Respondent contrary to those presented by the Claimant are left without any comments, this is again an example of non-equal handling of the Respondent by the two arbitrators.
a/ - depriving the Claimant of its investments - the Claimant has never been deprived of its investment, from the facts ascertained in the proceedings it results that the only investments ascertained and proved are investments for which the Claimant obtained the shares, the Claimant is owner of the shares till today, he has never been deprived of them, in case that the shares lost partly their value this is the question of claim for damages and not based on depriving,
as far as the alleged expropriation is concerned, it should be taken into consideration that the alleged expropriation occurred on the Territory of the Czech Republic and should be judged according to the Czech law /there is no reason for application of the international law/, but an expropriation by the State can occur in the Czech Republic only on the basis of an Administrative decision by the respective state body on the basis of Administrative proceedings, nothing like that happened,
b/ - fair and equitable treatment - in the commercial disputes there are considered as unfair treatment such steps that are contrary to customs of fair businessmen and/or that are contrary to bonos mores, here in the whole case one cannot find any step of the Media Council that would be contrary to customs of fair business relations or that could be considered to be contra bonos mores,
non-equitable treatment would be if the ČNTS/CME would be by acts of the Media Council or other Czech official body handled in a worse way that it was with the Czech citizens, but this never happened and has not been proved,
c/ - discriminatory measures - it is necessary to point out here the definition of the discrimination according to the Great Encyclopedia of 1999 as follows: "discrimination means intentional disadvantaging by creating non-equal economic, political or legal conditions", in this case no disadvantaging of the foreign investor has been proved, neither economically, nor politically, nor legally, because disadvantaging would mean to create for the foreign investors worse conditions than for the Czech ones.
This is supported by the following :
Question: After CME has bought from the Czech Savings Bank the shares in the ČNTS, had CME worse conditions than the Czech Savings Bank?
Naturally the answer based on the facts is "No".
No discrimination in comparison with the Czech company has been proved.
d/ - full security and protection - the Media Council never violated the Czech Law in non-rendering the full security and protection to the foreign investor, to draw such a conclusion is really paradoxical in comparison with the official policy of the Czech Republic that invites as from 1989 the foreign investors to the Czech Republic giving them not disadvantages but great advantages in comparison with the Czech companies, therefore it is absolutely far from reality to allege that the only target of the Media Council was to make harm to a foreign investor. And once more I would like to lay stress upon on the fact that none of the above conclusions is based on official decisions of the Media Council, always it is based on the allegation that somebody has somewhere heard something or that somebody quite inofficially has written something.
But with respect to the conclusions mentioned hereunder and supported by certain parts of the Award stating that Dr Železný was originator of the wrongdoing it should be added here that the alleged violation of the Treaty by the Czech Republic, if any, could only contribute to the arising of damage. This opinion is supported by the wording of the point 408. of the Award that "the Arbitral Tribunal is aware that it may well be that a variety of circumstances may have caused the deterioration of the Claimant's investment".
In addition thereto the above opinion is supported by the statement of the CME in the ICC dispute, cited in the ICC Award on page 40, point 119. that "Dr Železný's actions to replace ČNTS with AQS, Czech Production 2000 and MAG Media 99 had almost caused the complete destruction of ČNTS. Dr Železný breaches of his non-compete and non-solicitation obligations had had the effect that ČNTS currently provides no services to TV NOVA or any other station."
This ICC Award must be taken in consideration, as it was presented in these proceedings as evidence.
The Treaty states the following sequence of legal provisions to be applied:
- Czech Law
- the respective Treaty /BIT/ and other Treaty between the same states
- special agreements relating to investments
- international law.
It is without any doubt that Dr Železný was the main personality in this case. In addition thereto it should be stated that the company CET 21 that obtained the licence for television broadcasting was fully managed and controlled by him. For the starting of the TV broadcasting he needed financing and therefore he went into relation with company CEDC GmbH. Then CET 21 and CEDC created the company ČNTS.
The great fault of CEDC and later on also CME was that Dr Železný became the leading and deciding personality in CET 21, as well as in ČNTS. In this way CME fully lost any control over anything that happened in connection with TV Nova. But this loss of control has not been caused by the Media Council, ground to this loss of control was the decision of CME based on its free own will to appoint Dr Železný. The basis thereof were the decisions of the organs of the CET 21 and ČNTS as two companies fully independent of the Media Council in this respect as legal bodies. Naturally this has been used by Dr Železný positively for himself.
During these proceedings then CME has tried to clarify its apparent inexperience in the commercial enterprising by allegation, how far CME did trust to Dr Železný. But contrary to this allegation of the Claimant the Award states that Dr Železný as executive director of ČNTS committed massive, clear and intentional breach of his director's duties as a serious criminal offence. Naturally such an offence should be governed by the Czech law. It is surprising that the two arbitrators make conclusions based on the Czech criminal law, without quoting any provision of the Czech criminal law, on which their conclusion that Dr Železný committed a serious criminal offence is based.
Anyhow it must be stated that these acts - breaches of obligations were acts of Dr Železný, personally, for which the Respondent is not responsible and the Media Council on the basis of its activity prescribed by the Czech law, especially by the Czech Media law had no possibility to forbid to Dr Železný to do what he wanted to be done and what he has done. These facts are not denied in the Award but in spite of this fact this situation was not expressed in the Award and the question of contributory fault, if any has not been taken into account.
Dr Železný himself step by step prepared a solution that would be positive only for himself as follows:
- firstly he secured starting of activity of TV Nova financially by agreement with CEDC,
- thereafter he has done everything for securing the considerable profits derived from the activity of TV Nova, as ascertained in 1996, and then in 1997 and later in 1998,
- he gained leading position in CET 21 and ČNTS in order to know in advance any detail necessary for the steps positive for him, this thanks to great artlessness and unexperience of people of CME, but without any contribution to this situation from the part of Media Council,
- then followed steps of Dr Železný with the only aim to get rid of ČNTS/CME and to gain all profits from TV Nova, additionally to have free hands in cooperation with other advertising agencies, this aim he reached by termination of the Service Agreement in 1999, stopping any cooperation with CME,
- during the whole proceedings there has never been proved a connection between the change of MOA 1996 and termination of the Service Agreement, there were only talking about it and allegations of the Claimant that are as proof absolutely unsufficient.
Was it the Media Council? Surely not, as should Dr Železný not terminate the Service Agreement in an arbitrary way, the situation would remain such as it was in 1993 and thereafter without change in 1996, irrespective of any steps of the Media Council. So the originator of the "injury Claimant suffered" was exclusively Dr Železný, the principal blame is on his side. To what extent the Media Council committed faults is another question, but in no case the Media Council was the originator.
In addition thereto it should be stated that the Media Council is neither towards the foreign investors nor towards any other person responsible for acts of Dr Železný.
In any event there must be in a right way ascertained the basis of the responsibility for the harm caused allegedly to CME. From the above lines it is necessary to draw the conclusion that the original grounds were always the deeds of Dr Železný. So far any wrongdoing should be ascertained on the side of the Media Council, what was not the case, this could only contribute to the harm.
There is here an unambiguous fact that should Dr Železný have not arbitrarily terminated the Service Agreement, nothing wrong would have happened, nothing to the detriment of the CME and everything would have continued as it was before. That this conclusion is right is also supported by some points contained in the wording of the Award.
And now comes the principle question:
What would happen, should Dr Železný not have done the worst step, i.e. should he not terminate the Service Agreement?
The answer is clear: Nothing would happen, the relations CET 21 - ČNTS would remain as they were in 1993 and in 1996 and in 1999, CME would suffer no damage.
Could Dr Železný have done, what he did, i.e. in an arbitrary way to terminate the Service Agreement, should the Media Council not have made steps that are considered as violation of the Treaty?
The answer is again unambiguous: Yes, he could and nobody could stop him, neither the Media Council.
The conclusion to this point should have been taken into consideration in deciding as to the basis for damages in this partial Award. This has not been done in the Award and one of the argument of Dr Kühn was that however Dr Železný is not the Defendant /Respondent/. This argument is not understandable because any court can decide that somebody has caused certain percentage of the damage in spite of the fact that the main wrongdoer has not been sued at all.
These principal aspects are as follows:
- violation of a legal obligation - according to the Award it has been proved by the violation of the Treaty
- arising of actual damage - it has not been proved, this has nothing to do with the quantum of damages,
- blame/in German Verschulden/, i.e. dolus or culpa here surely only culpa, could be freely translated into English as negligence- has not been proved,
- nexus causalis - has not been proved
- quantum damages - to be proved in next phase of proceedings.
In addition thereto it is inevitable to come back to the preceding point of this Dissenting opinion as to the basic blame for the damages. This is without any doubt the blame of Dr Železný. In some parts of the Award it has been stated in a right way that this or this was done by Dr Železný that led to the disaster of the CME investments. Therefore I can only repeat that also in case that the Czech Republic violated the Treaty, what I do not accept, the Czech Republic was not the originator of the damage. And this is the question of the degree of blame, as it has been defined in one cited authority above as "contributory fault". In the Award it is formulated so as if the Czech Republic was the originator of everything what was done wrong. But this is in no case right, as also the Award says in its reasoning more than once that the Czech Republic helped to Dr Železný in this way or that way, but without stating that the harm to CME would not occur in case when Dr Železný would behave in a perfect way.
It should be added some lines concerning the indicating in the Award of the Czech Republic to be the tortfeasor. The two arbitrators erroneously try to prove that the Czech Republic was the tortfeasor. This is not right. If somebody then it is Dr Železný, who must be declared as tortfeasor. The Czech Republic, in case that the conception of the two arbitrators expressed in the Award as to the originator of the wrongdoing is right, is neither the tortfeasor nor the joint tortfeasor, but a person that helped allegedly to Dr Železný, i.e. to the tortfeasor to commit the tort. In addition as to the tort it has never been proved that on the side of the Czech Republic there would be an intent that necessarily must have been proved, and further the Czech Republic could at the maximum play a contributory role.
In connection with the above it should be borne in mind that the Claimant has never proved what were the investments and in which amounts /in details/, this is naturally in direct connection with the "fair market value of the Claimant's investment" in the second phase of these proceedings, because for fulfilling the requirement of the Claimant as to the restoring the value of investments it must be known, what were the investments.
In addition thereto the amount to be paid to the Claimant should be reduced to a foreseeable amount, but generally it can be said that the Media Council could never foresee that Dr Železný will terminate arbitrarily the Service Agreement.
But the Award several times criticises the decisions of the Czech Courts though it has no right to do so, especially the judgment of the Prague Court of Appeal as to the question of the arbitrary termination of the Service Agreement by Dr Železný. This Tribunal has neither the right to criticise nor to change it. And here it can be seen the very reason of this standpoint expressed by the two arbitrators in the Award. The above Judgment of the Appeal Court which is in legal force /Superappeal does not influence this/, has that legal sense that this question must be considered as res iudicata, i.e. this is a matter already decided. The principle of "res iudicata" is expressly accepted practically in all European legal systems and that this case is a dispute according to the European Civil Law and not according to the American Common Law, is without any doubt.
- wrong ascertaining of facts, partly due to full accepting of the allegations of the Claimant without asking him to prove them and non-enabling to the Respondents to prove his points by asking the documents specified by the Respondent from the Claimant,
- wrong legal conclusions as to the legal analysis of the provisions of the Netherlands - Czech Republic Bilateral Investment Treaty,
- non-taking into the consideration the Czech Law, as well as the wrong interpretation of the Czech law,
- non-respecting of the provisions of the Czech Law that are of mandatory character, e.g. the Media Law or the Administrative Proceedings Code, thereby violation of the principle to observe the public policy /order/ of the respective country,
- non-respecting of the internationally accepted principles of law, as e.g. impedimentum rejudicatae,
- non-equal handling of Claimant and Respondent to the disadvantage of the Respondent and violating the principles of fairness, equality of arms and due process towards the Respondent.
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