Introduction
Decisions by judicial bodies, in general, are often the result of complex debate arising out of different perceptions of law and evidence. Issuing a decision, irrespective of the importance of the dispute, is most delicate a task that invariably requires not just legal skills but also, and perhaps especially, a great deal of balance and common sense.
Such a difficult equation becomes even more complex in the field of international disputes, public or private, to be adjudicated by judges or arbitrators with different legal and cultural background. The struggle endured by international adjudicators goes too many times unnoticed. The vast number of unanimous decisions rendered every day is indeed an achievement that has never been properly celebrated.
The complexity of international adjudication is particularly clear in the case of international commercial arbitration, where arbitrators coming from countries with different legal traditions are faced with complex issues to be settled under a law that they may have a limited knowledge of. Furthermore, and perhaps most importantly, they are faced with issues of a procedural nature that may be alien to their legal background.
In this context, the idea of insurmountable disagreement should neither surprise nor, indeed, concern excessively. The question, however, is whether such disagreement should be expressed through the issuance of dissenting opinions.
International Courts
Dissenting opinions have been an important feature of international courts for many years. Particularly, the dissenting opinions rendered in the jurisprudence of the International Court of Justice have played a remarkable role in the development of international law.[1] The importance of dissents before international courts, particularly the ICJ, is due to the public nature of the proceedings and the fact that such decisions often address novel issues over which no solid body of jurisprudence has yet developed. Nonetheless, and in spite of this, dissent has not been spared a share of criticism. It has been suggested, for example, that: “disastrous consequences might follow for a high judicial institution which can command observance of its judgment and opinions only by its prestige and by the persuasion which the statement of its conclusions imparts.”[2]
History is, in fact, proving the contrary. The frequent and highly regarded dissenting opinions rendered by ICJ judges, for example, if anything, have somehow added to the prestige and reliability of the Court. It has been observed in support of dissenting opinions that anonymity of the judgment may encourage a judge to vote in support of the cause of his State without incurring the embarrassment of partisanship. On the other hand, a well reasoned and earnest dissent serves the purpose of showing that the case was thoroughly assessed and evaluated.[3]
It is therefore debatable whether – as it has been suggested on the issue with regard to the ICJ’s predecessor, the Permanent Court of International Justice – when dissenting opinions multiply, contradict and attack each other on the basis of the majority decision itself and affirm contradictory and sometimes erroneous theories, the very authority and the prestige of the Court and its decisions are downgraded.[4] To the contrary, as it has been observed by a great scholar such as Sir Hersch Lauterpacht, dissenting opinions have contributed a great deal to the development of international law and, particularly, to the authority of international justice. According to Sir Hersch, moreover, dissenting opinions act as a safeguard of the independence and impartiality of the judges and provide a better understanding of the Court’s judgments.[5]
State courts
Dissenting opinions have served the important purpose of law development also under domestic law. Some of the best-known dissenting opinions rendered in the US, for example, might be described as tools through which the law managed to move to a higher and more civilized stage during time. It is often recalled in this respect the dissenting opinion rendered by Justice Harlan in 1896 in a Supreme Court racial segregation case.[6] That dissenting opinion was at the heart of the decision, almost fifty years later, in the case of Brown v. Board of Education,[7] which ended racial segregation in American schools. The importance of dissenting opinions in the US legal system has been aptly described by United States Supreme Court Chief Justice Charles Evans Hughes. In his often-quoted remark he explained that: “[a] dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”[8]
Similarly, in the United Kingdom, a dissenting opinion is believed to have contributed to a radical change, interestingly enough, of the law on arbitration. In the well-known Ken Ren case the then House of Lords, now Supreme Court, addressed the issue as to whether or not to make an order for security for costs in an arbitration. The Lord Justices agreed that the English courts had a discretionary power to issue any such orders. In Lord Mustill’s dissenting opinion, which Lord Browne-Wilkinson agreed upon, it was argued that an order for security for costs did not conform to the type of procedure that the parties had selected for the protection of their rights and that any court application to that effect should have been denied.[9]
Interestingly, the 1996 English Arbitration Act, which was enacted one year later the Ken Ren decision, took the power to order security for costs in arbitration away from the English courts and vested it in the arbitrators.[10]
Dissenting opinions in international arbitration
It is undeniable that dissenting opinions in international and domestic courts can contribute to the development of law. A dissenting opinion by an ICJ judge may be relied upon in subsequent ICJ cases. Similarly, a dissenting opinion by a domestic court judge may well provide guidance and inspiration to appellate or supreme court judges as well as to future court judges in similar cases.
It is, however, less obvious how dissenting opinions could serve any such purpose in international commercial arbitration, where the proceedings are predominantly confidential and awards are generally not published. Furthermore, in most jurisdictions, domestic courts cannot review the merits of arbitral awards. In other words, there is generally no appellate system in international arbitration and domestic courts’ scrutiny is mainly limited to issues of jurisdiction and due process.
What is then the role of dissent in international commercial arbitration? Should this be encouraged, tolerated or altogether prohibited?
The issue was addressed, a while ago, by the International Chamber of Commerce’s Commission on International Arbitration through the Working Party on Dissenting Opinions. In that Report it was agreed that: “[…] it is neither practical nor desirable to attempt to suppress dissenting opinions in ICC arbitrations. A minority opinion was expressed to the effect that the ICC should seek to minimize the role of dissenting opinions, but the prevailing view was that the ICC should neither encourage nor discourage the giving of such opinions.” [11] That criticism had been expressed by the French National Committee according to which (a) dissenting opinions underscore the link between the arbitrator and the party who nominates him; (b) the arbitrators no longer feel obliged to search for a unanimous decision after confronting each other’s opinions and (c) a dissenting opinion may introduce a debate on the merits of the case before the Court of Arbitration.
The ICC Commission recognized the force of the French National Committee’s arguments. However, it was noted that the vast majority was in favor of the opposite opinion and that the freedom of expression of each arbitrator should have been respected.[12]
While the policy behind the freedom for each arbitrator to issue dissenting views may be understandable, it remains to establish whether, more generally, such a freedom might serve any systemic purpose.
This is surely an issue that should not be underestimated because, irrespective of the position that one may wish to take in this respect, it is undeniable that a dissenting opinion is likely to create a certain degree of turbulence in any arbitration proceedings. It has been suggested in this regard by international arbitration specialists Larry Shore and Kenneth Figueroa that “when serving on a commercial panel, an arbitrator should strive to reach unanimity with his or her colleagues. Unanimity is an important part of the panel’s mission, and is consistent with the development of commercial arbitration.”[13]
Moreover, dissenting opinions are, by themselves, evidence of starch disagreement, if not controversy, amongst the members of arbitral tribunals. Indeed, dissenting opinions are sometimes acrimonious and filled with disheartening language towards the majority. This, however, has more to do with lack of courtesy and consideration rather than dissenting opinions. Arbitrators should never forget that they are performing judicial functions and should therefore adjust their behavior accordingly. Needless to say that disagreement might be extreme. Yet, language should not.
Having said that, the dissenting opinions the purpose of which is being taken into account, here, are those issued out of a genuine and civilized disagreement as to how the dispute should have been decided and, perhaps, how the proceedings should have been carried out. Partisanship and dishonesty are of course out of any meaningful analysis.
Having clarified this, it is observed that dissenting opinions may increase the quality of majority awards. In other words, when confronted with structured dissents, the majority may somehow feel compelled to address all controversial issues more in depth and draft the award with the utmost care. For this reason, if the dissenting opinion is genuinely meant to fulfill constructive and cooperative purposes, it should be provided to the majority arbitrators before the majority award is finalized. Indeed, while it is true and indeed desirable that the dissenting arbitrator would have already made his or her position clear to the fellow arbitrators, providing them with the written dissent may amount to an additional and final chance to review and reconsider any controversial issues.
Moreover, dissenting opinions, instead of weakening the arbitral tribunal’s authority, can instill confidence in the process. In other words, a balanced and non-acrimonious dissenting opinion may provide evidence to the losing party that all arguments were taken into account and exhaustively analyzed by the arbitral tribunal during deliberation.
Finally, it is signaled that the last decade has registered an increasing call for publication of arbitral awards with a view to creating some kind of consistent jurisprudence on certain recurrent features of international trade law. It goes without saying that the more “public” arbitral decisions are the stronger the case for dissenting opinions would be. Indeed, what has been said with regard to dissenting opinions in international and domestic courts would become increasingly applicable and relevant to international commercial arbitration.
The peculiar case of dissenting opinions in investment arbitration
It is perhaps worth signaling a recent debate on dissenting opinions in international investment arbitration. As is well-known, investment arbitration aims at settling dispute between a foreign investor and a sovereign State. This is a special type of arbitration which, in its most frequent form, is governed by public international law. An important feature of investment arbitration is that most of the awards, in fact virtually of all them, are normally published. The publication of investment arbitral awards is part of a generally shared view according to which States’ accountability should be pursued through transparency and the general public’s access to information. As a result, it is believed that any State conduct potentially in breach of an international duty should be the object of public scrutiny. In line with this trend, ICSID amended its Rules in 2006 and, more recently, UNCITRAL launched a working Group on transparency in investment arbitration.
It has been observed, with some understandable disconcert, by the leading scholar and arbitrator Albert Jan van den Berg that dissenting opinions have been issued in about 22% of the around 150 investment arbitral awards rendered so far in this comparatively recent and expanding forum. According to data that the prominent author describes as astonishing, nearly all of those dissenting opinions were issued by the arbitrator appointed by the party that lost the case.[14]
Without entering into an “in depth” analysis about the issue raised by such a distinguished author, as far as the number of dissenting opinions is concerned, there seems to be little of a surprise or indeed of a concern. The percentage of dissenting opinions recorded in his study does not differ too much from the the data available in relation to ICJ cases, where dissenting opinions are just as frequent. Any decision relating to a novel or developing body of law will inevitably, and perhaps hopefully, entail different opinions. Moreover, it is perhaps desirable that any views about such a comparatively new and developing body or rules, such as foreign investment law, should be made available to the general public with a view to encouraging the discussion on that issue. It is well known, for example, how unsettled issues such as the scope of fair and equitable treatment provisions and the reach of MFN clauses are.
Shore & Figueroa seem to support the idea that “when serving as an arbitrator on an investment treaty tribunal, should take a different approach. The development of international investment law is usually tied to a treaty case. So an arbitrator on that side of the divide must be prepared to do precisely the opposite – and not bend his or her view to achieve unanimity. Instead an arbitrator should state his or her view both to develop the law and to demonstrate his or her thinking to the broader investment treaty community (which is very broad indeed, given that virtually every state is a member).”[15]
It is certainly also arguable that investment arbitrations should not be seen as a stage for mere academic debating. Some of the dissenting opinions issued in recent investment arbitrations share are very close to PhD thesis, sometimes stretching for hundreds of pages. It is sometimes to be wondered whether, at least as a professional courtesy to those that are somehow compelled to read, the dissenter could try and express himself or herself in a more concise and considerate fashion.
Having said that, novelty of issues and publicity of proceedings do play a role in many arbitrators’ decision to publish dissenting opinions. Irrespective of appropriateness and fashion, it is undeniable that those dissenting opinions can contribute to the analysis and the development of such new body of law.
While the number of dissenting opinions in general does not seem to be out of line with the general practice, the fact that most dissenting opinions are issued by arbitrators appointed by the losing party may, as suggested by Prof. van den Berg, also have some additional significance.
The standing of most individuals serving as arbitrators in investment disputes is such as to rule out, out of hand, any concerns in terms of partiality or lack of neutrality.
The answer may be found in the fact that investment arbitration is characterized by the same features that often advise judges sitting in international courts to issue dissenting opinions. That is, novelty of issues, which spurs need for debating, and publicity of the decisions, which provides for a medium allowing debate to effectively take place. Arbitrators in investment disputes may therefore feel to be under an obligation to dissent.
However, investment arbitration is characterized by an additional feature that might explain the remarkable data highlighted by Prof. van den Berg. This is the fact that parties in investment arbitration, unlike parties in court proceedings, do have the right to appoint arbitrators of their choice. Understandably, parties are minded to appoint arbitrators that, based on the available information, such as lecturing and publications, might have a certain take on the issues to be settled in the proceedings. Perhaps this is not enough, by itself, to explain the startling figures highlighted by Prof. van den Berg even though it is an additional element to be taken into account to analyze the above-mentioned path in dissenting opinions. Be it as it may, it is submitted that dissenting opinions are too important a tool in the development of investment arbitration to be discouraged or indeed prohibited.
Finally, as it can be observed with regard to dissenting opinions in general, dissent is often the judge of itself. Genuine and well-reasoned dissenting opinions can do a great deal of good. Partisan and impolite ones can only harm the dissenter.
Domenico Di Pietro
Lecturer, International Arbitration, University or Rome, “Roma Tre” and Fellow, Center for Transnational Litigation and Commercial Law, New York University School of Law.
[1] Anand, The Role Of Individual And Dissenting Opinions In International Adjudication, International And Comparative Law Quarterly (1965), 14: 788-808.
[2] Hudson, Twenty-Eighth Year of the World Court, 44 Am. J. Int’l L. 21 (1950). This article was written mainly with reference to the work of the PCIJ but it also addressed the first few years of operation of the ICJ.
[3] Mosk & Ginsburg Dissenting Opinions In International Arbitration, Liber Amicorum Bengt Broms, 1999.
[4] Politis, How the World Court has Functioned (1926) 4 Foreign Affairs 451 (April).
[5] Lauterpacht, The Development of International Law by the International Court, 1958, 68.
[6] Plessy v. Ferguson (1896).
[7]Brown v. Board of Education, 347 U.S. 483 (1954).
[8] Hughes, The Supreme Court of the United States, 1928, 68.
[9] Chopée Levalin NV v. Ken Ren Chemicals and Fertilisers Ltd. [1995] 1 A.C. 38.
[10] See on this issue Redfern, Dissenting Opinions in International Commercial Arbitration: The Good, the Bad and the Ugly, 20 Arbitration International, 223, 242 (2004).
[11] Final Report on Dissenting and Separate Opinions of the Working Party on Dissenting Opinions and Interim and Partial Awards of the ICC Commission on International Arbitration. Adopted by the Commission on April 21, 1988. Available at www.iccdrl.com
[12] It may be argued that the publication of the French Committee’s minority might lend some evidence about the role that may be played by dissenting opinions.
[13] Shore & Figueroa, Dissents, Concurrences and a Necessary Divide Between Investment and Commercial Arbitration, 3 Global Arbitration Review. 18, 20 (2008).
[14] van den Berg, Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman.
[15] Shore & Figueroa, Dissents, Concurrences and a Necessary Divide Between Investment and Commercial Arbitration, 3 Global Arbitration Review, 18, 20 (2008).