Procedural Context

This document is the Concurring and Dissenting Opinion of Arbitrator Rolf Knieper in an SCC arbitration. The opinion addresses two principal jurisdictional objections raised by the Respondent, Georgia.

(A) Concurrence on Claimant's Nationality

The arbitrator concurs with the majority of the Tribunal in dismissing the objection related to the Claimant's dual nationality. While initially expressing hesitation regarding whether the Claimant's profile fit the policy objectives of the UK-Georgia Bilateral Investment Treaty (BIT), he was ultimately persuaded by the majority's finding that the Claimant's UK citizenship was genuine and factually established, and therefore should be respected for the purposes of establishing jurisdiction.

(B) Dissent on Consent to Arbitration

The arbitrator dissents from the majority's finding on jurisdiction, concluding that the Tribunal lacks jurisdiction to hear the dispute under the auspices of the SCC Arbitration Institute. The core of the dissent addresses whether the Most-Favoured-Nation (MFN) clause in Article 3 of the UK-Georgia BIT can be invoked by the Claimant to import the dispute resolution provisions of the Georgia-Belgium-Luxembourg Economic Union (BLEU) BIT, which permits arbitration under SCC rules.

The arbitrator's reasoning is grounded in the principle that a state's consent to arbitration must be express, clear, and unequivocal. He finds that Article 8 of the UK-Georgia BIT, titled "Reference to International Centre of Investment Disputes," constitutes a specific and exclusive consent to the ICSID system. He emphasizes that the contracting parties, Georgia and the United Kingdom, made a "conscious choice" to adopt this 'preferred' version of the UK Model BIT, which provides for a single, exclusive forum (ICSID), and explicitly rejected the 'alternative' version that offered a choice of multiple arbitral institutions. This specific consent to a "fully autonomous, self-standing and truly international adjudicative system" cannot be displaced by the MFN clause.

Distinguishing the present case from key precedents such as Maffezini v. Spain, the arbitrator notes that those cases involved BITs that already contained a consent to multiple arbitral fora, making the addition of another forum eiusdem generis. In contrast, the UK-Georgia BIT's exclusive consent to ICSID cannot be fundamentally altered to encompass a different arbitral system like the SCC. He concludes that importing the SCC forum would contravene the express and limited consent given by Georgia in the BIT. Accordingly, he finds that the Tribunal has no jurisdiction over the dispute.