There are many so-called ‘hot’ topics in international arbitration that could have been the subject of this article, but ultimately the topic chose itself.
In arbitration, a dissenting opinion is a written statement that an arbitrator can make to express their disagreement with the award or the reasoning for it. It does not form part of the award. Nor is it a separate award. Under most arbitration legislation, it does not prevent the award from being final or from being an award.
While dissenting opinions or judgments may be more common in common law jurisdictions, they have been traditionally less prevalent in civil jurisdictions or in international arbitration, where consensus is more of the norm and desired.
Dissenting opinions may serve an important role in the arbitration process. They can enhance confidence in the award by reinforcing the independence of the arbitrator and avoid awards being watered down or compromised in the name of unanimity.
However, such opinions also carry a risk of abuse. They expose an arbitrator for lacking independence, preferring instead to flatter and appease the party that appointed them. Such a risk may be even more likely in unadministered arbitration where there is no institution to oversee the behaviour of the arbitral tribunal or scrutinise the award.
At worst, a dissenting opinion may delay the rendering of an award or even put at risk its enforceability. Dissenting opinions may also undermine the principle of confidentiality with regard to the tribunal’s deliberations.
Given the more public domain in which they operate, investment arbitrations are perhaps perceived to have more dissenting opinions. Many such opinions have been criticised for revealing the personal prejudices of an arbitrator as a cynical means to undermine the validity and enforceability of the award. Some have gone as far as to suggest that a dissenting opinion is only given by party-appointed arbitrators whose parties have either lost fully or partly the arbitration proceedings.
Others have countered by claiming that dissenting opinions have led to positive development of international law and foster the legitimacy of international arbitration. Further, if a dissent is circulated before the award is finalised, it may ensure that the award is well-reasoned by raising the most difficult problems within the majority’s own reasoning.
With the perceived rise in dissenting opinions, it is important to remember that they may be beneficial to the arbitration process, but that they may also bring both the dissenting arbitrator and arbitration generally into disrepute. Arbitrators should not forget or be afraid to exercise their important right to dissent, but this right should be exercised sparingly and only after careful, considered, impartial and sincere reflection.
Joe Tirado is co-chair of international arbitration at Winston & Strawn