JOINT PARTLY DISSENTING OPINION OF JUDGES RUSSO AND SPIELMANN (ARTICLE 6 PARA. 1 OF THE CONVENTION) (art. 6-1)

(Translation)

In general, we share the opinion of the majority that there has been no violation of Article 6 para. 1 (art. 6-1) of the Convention, but we cannot agree with it as regards Sir William Lithgow (see paragraphs 193-197 of the judgment). This is because we consider that, as the largest Kincaid shareholder, he did not enjoy the right of access to a court, which is guaranteed by the said Article 6 para. 1 (art. 6-1).

In holding that there was no violation of this provision, the Court relied on two arguments which we do not find convincing.

Firstly, the Court considered that the limitation on the direct right of access to the Arbitration Tribunal - access being available only to the Stockholders ’ Representative but not to a shareholder - pursued a legitimate aim, namely the desire to avoid a multiplicity of individual claims. But even supposing that an aim of this kind can be regarded as reasonable, it cannot be taken as sufficient to justify the suppression - and, in our view, it was not a matter of a mere restriction, especially as Sir William Lithgow held a relative majority (that is, a "blocking minority") of the shares - of a fundamental entitlement and, hence, the impairment of the very essence of the right in question.

Secondly, the Court noted that it was open to the shareholders to institute proceedings against the Representative for failure to comply with his statutory duties or with his common-law obligations as agent. This reasoning also does not appear to us persuasive since, unless he established that the Representative had acted fraudulently or negligently, a shareholder could derive no advantage from this remedy. In any event, even if he had exercised it, Sir William Lithgow would at the most have obtained a finding of responsibility on the part of the Representative, something that was clearly not his objective.

[*]  Note by the Registrar: The case is numbered 2/1984/74/112-118. The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.