What\'s Wrong with International Law?

What’s Wrong with International Law? Liber Amicorum A.H.A. Soons Edited by

Cedric Ryngaert Erik J. Molenaar Sarah M.H. Nouwen

LEIDEN | BOSTON

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Contents International Law as We Know It ix Patricia Jimenez Kwast List of Abbreviations xii List of Contributors xv

Part 1 Introductory Observations 1 Introduction: “What’s Wrong with International Law?” 3 Cedric Ryngaert, Erik J. Molenaar and Sarah M.H. Nouwen 2 Fred Soons: A Pragmatic Trust in International Law 6 André Nollkaemper 3 An Appreciation of Fred Soons 10 John K. Gamble

Part 2 What’s Wrong with International Law? Specialised Areas Section A Law of the Sea 4 Some Reflections on What’s Wrong with the Law of the Sea 16 Rosemary Rayfuse 5 Responsibility for Human Rights Violations Arising from the Use of Privately Contracted Armed Security Personnel against Piracy. Re-Emphasizing the Primary Role and Obligations of Flag States 30 Jessica N.M. Schechinger 6 A Sketch of the Concept of Ocean Governance and Its Relationship with the Law of the Sea 48 Yoshinobu Takei

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Is There Something Wrong with the Increasing Role of Private Actors? The Case of the Offshore Energy Sector 63 Seline Trevisanut

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Limitation of Liability for Maritime Claims and Politics: Curse or Cure? 76 Vivian van der Kuil

Section B Dispute Settlement 9

Bad Law and a Hard Case? The Impact of the Wall Advisory Opinion of the ICJ 94 Matthijs de Blois

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International Human Rights Implementation: Strengthen Existing Mechanisms, Establish a World Court for Human Rights, or Both? 114 Jenny E. Goldschmidt

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Prohibitions on Dissenting Opinions in International Arbitration 128 Patricia Jimenez Kwast

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Transnational Human Rights Litigation against Multinational Corporations Post-Kiobel  154 Menno T. Kamminga

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What is Wrong with International Standards on Social Protection? 166 Frans Pennings

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Corporate Social Responsibility: A New Framework for International Standard Setting? 186 Teun Jaspers

Section C International Environmental Law 15

Caught Napping by (Sea) Wolves: International Wildlife Law and Unforeseen Circumstances Involving the Killer Whale (Orcinus orca) and the Gray Wolf (Canis lupus) 200 Arie Trouwborst

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What is Wrong with International Environmental Law? 214 Johan G. Lammers

Section D Law of Treaties 17

A Critical Look at the Law of Treaties: Giving Recognition to Informal Means of Treaty Adaptation 232 Irina Buga

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Absolute Validity, Absolute Immunity: Is There Something Wrong with Article 103 of the UN Charter? 247 Guido den Dekker

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Aspects of the Law of Treaties 265 Kenneth. J. Keith

Section E Miscellaneous 20 Good Governance: A Principle of International Law 288 Henk Addink 21

The Right to Peace: A Mischievous Declaration 304 Peter van Krieken

22 Self-Determination and Regional Human Rights Bodies: The Case of Southern Cameroons and the African Commission on Human and Peoples’ Rights 334 Brianne McGonigle Leyh 23

What’s Wrong with the Relationship between the International Court of Justice and the Security Council? 347 Otto Spijkers

Part 3 What’s Wrong with International Law as a Regulatory System? 24 What’s Wrong with International Law? 367 M.C.W. Pinto

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25 The Under-Appreciated Role of Curial Settlement in International Law Norm-Making: Using Transnational Law and Diffusion Studies to Re-Assess the Status of Prior Decisions 385 Pieter Bekker and Thomas Innes 26 How and to Whom Do We Explain International Law? 404 John K. Gamble 27

Fragmentation in International Law and Governance: Understanding the Sum of the Parts 419 Charlotte Ku

28 Whither Territoriality? The European Union’s Use of Territoriality to Set Norms with Universal Effects 434 Cedric Ryngaert 29 Revealing the Publicness of International Law 449 Ramses A. Wessel 30 What’s Wrong with International Lawyers? 467 John Dugard Index 479

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Prohibitions on Dissenting Opinions in International Arbitration Patricia Jimenez Kwast Introduction As one of the arbitrators in the Iron Rhine (Belgium/The Netherlands) arbitration,1 Professor Soons and the other members of the tribunal chaired by Dame Rosalyn Higgins QC once faced an exceptional prohibition. The rules of procedure stipulated that no separate or dissenting opinions would be attached to the award.2 I was Professor Soons’ research assistant at the time of Iron Rhine and could not find a similar prohibition on dissent in other modern international arbitrations. While some treaties and arbitration rules explicitly allowed dissenting opinions,3 most rules of procedure were silent on dissent. There was no other publicly available arbitration rule to be found that explicitly prohibited dissenting opinions. The Iron Rhine rule on dissent brings us to a topic that is a candidate par excellence for the theme of this book. On the one hand, a prohibition on dissent implies that something is or could be wrong with dissenting opinions in international arbitration. On the other hand, however, the absence of similar rules in other cases raises the suspicion that it could be a mistake to prohibit arbitral dissent. Perhaps the raison d’être of dissent – to explain what is (supposedly) wrong with the award – strengthens the quality and role of arbitration in international law. If dissenting opinions are or can be beneficial, would it be wrong to prohibit their use? The dominant view today is that dissenting opinions should not be prohibited, but this has not always been the accepted wisdom. 1 Award in the Arbitration regarding the Iron Rhine (“IJzeren Rijn”) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands (24 May 2005) 27 RIAA 35. 2 Art. 18(1) Rules of Procedure for the Iron Rhine Arbitration available at . 3 Cf. Art. 48(4) Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) 575 UNTS 159 and Art. 47(3) of the Arbitration Rules; Art. 10 Annex VII United Nations Convention on the Law of the Sea (1982) 1833 UNTS 3. For ad hoc rules see, e.g., Interpretation of the Air Transport Services Agreement (United States/France) (22 December 1963) 16 RIAA 5 (Art. VI(A)); Re-evaluation of the German Mark (Belgium, France, Switzerland, UK, and US/Germany) (16 May 1980) 19 RIAA 67 (Rule 44(c)); Eritrea/Yemen, Stage I (9 October 1998) and Stage II (17 December 1999) 22 RIAA 209 and 335 (Art. 12(1)(c)).

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Is It Wrong to (not) Permit Arbitral Dissent?

Instances of arbitral dissent have been recorded well before the Hague Peace Conferences,4 seemingly without cause for concern. However, in the course of these conferences the concern gained prominence that dissent could undermine arbitration. The 1899 Hague Convention allowed arbitrators to “record their dissent,”5 but a proposal to let them state the reasons for their dissent was rejected for fear of “the possibility of having two awards in each case and of bringing the disagreement of the arbitrators before the public.”6 By 1907, at the Second Hague Peace Conference, it had become too controversial to allow arbitrators to record any dissent. Accordingly, the 1907 Hague Convention does not refer to any option for arbitrators to record their dissent.7 This volte-face on dissent was a Dutch initiative. The Dutch delegation held that the rule on dissent in the 1899 Convention would “lead rather to harmful than to useful consequences and […] for this reason, should be omitted altogether.”8 The Netherlands wanted to have the rule removed because making any dissent public would risk reopening the discussions on the merits of the dispute, thereby “undermining confidence in the arbitral decision.”9 Furthermore, the rule was seen to be contrary to the finality of arbitral decisions since such finality required that “the decision settles any ulterior discussions […] outside of the precincts of the tribunal.”10 The attitude of the Dutch delegation at the Second Peace Conference has been characterized as “a single-handed but extremely effective crusade against 4

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The British arbitrator’s dissent to the 1872 Alabama Claims award is a well-known example, though there are earlier instances reported in W.E. Darby, International Tribunals: A Collection of the Various Schemes Which Have Been Propounded; and of Instances Since 1815, 3rd edn (J.M. Dent & Co, London: 1900) 491–492 (in 1851), 494 (in 1863) and 497–498 (in 1871). Art. 52 (2nd para.) Convention for the Pacific Settlement of International Disputes (1899) 1 American Journal of International Law 103. Report by Chevalier Descamps (Belgium), The Proceedings of the Hague Peace Conferences: The Conference of 1899 (transl. official texts, J.B. Scott dir., Oxford University Press, New York: 1920) 149. Instead, the President is the only tribunal member to sign the award: Art. 79 Convention for the Pacific Settlement of International Disputes (1907) 2 American Journal of Inter­ national Law Supplement 43. Statement Mr. Loeff (The Netherlands), First Commission 11th mtg. The Proceedings of the Hague Peace Conferences: The Conference of 1907 (Vol. 2, J.B. Scott dir., Oxford University Press, New York: 1920) 363. Ibid., 363–364. Ibid., 363.

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the notion of dissent.”11 However, it had not been a solo act. The statement of the Dutch concerns had been met with applause (literally) and by a general acknowledgment of the validity of the points that were raised.12 Moreover, following the call for reconsideration of the rule, the committee charged with revising the text had gone even further in the quest to banish the expression of arbitral dissent. This committee had made additional changes – requiring that dissenting votes would not be revealed in the minutes or in the award – in order to “give the award a more anonymous character.”13 Much has changed in today’s views on dissent in international arbitration. Given the many successes of arbitration in the international legal system, it is unsurprising that the early fears of undermining the confidence in arbitration and in the finality of awards have lost their sharpest edge. Nevertheless, the debate on arbitral dissenting opinions lingers on. A Review of Arguments in Favor of Dissenting Opinions Improving the Quality of Reasoning in the Award Dissenting opinions have been said to contribute to high(er) quality arbitral awards by pointing to flaws in the reasoning of the majority decision. In this way, well-reasoned dissents are said to help in ensuring a more thorough reasoning on the issues on which tribunal members disagree.14 Moreover, this benefit could be seen to apply to any arbitration in which dissenting opinions are allowed – whether or not the opinions are actually issued – since the mere prospect or possibility of such dissent is likely to concentrate the arbitrators’ minds on the quality of their reasoning.15 However, the argument that dissent improves, or may improve, the quality of arbitral awards is not particularly strong. In the first place, any contribution 11

I. Hussain, Dissenting and Separate Opinions at the World Court (Martinus Nijhoff Publishers, Dordrecht: 1984) 15. 12 Cf. Proceedings of the 1907 Conference, note 8 at 364. 13 Report of Baron Guillaume (Belgium) on the Revision of the Convention of 1899 for the Pacific Settlement of International Disputes, Proceedings of the Hague Peace Conferences: The Conference of 1907 (Vol. 1, transl. official texts, J.B. Scott dir., Oxford University Press, New York: 1920) 436. 14 Cf. R.M. Mosk and T. Ginsburg, “Dissenting Opinions in International Arbitration” in M. Tupamäki (ed) Liber Amicorum Bengt Broms: Celebrating His 70th Birthday, 16 October 1999 (Finnish Branch of the International Law Association, Helsinki: 1999) 259, 270; also E. Gaillard and J.F. Savage (eds) Fouchard, Gaillard, Goldman on International Commercial Arbitration (Kluwer Law International, The Hague, Boston: 1999) 766. 15 Cf. H. Smit “Dissenting Opinions in Arbitration” (2004) 15 ICC International Court of Arbitration Bulletin 37, 38.

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to the quality of an award should be minimal because arbitral decisions should be impeccably reasoned with or without the threat of dissent. Tribunals do not require dissenting opinions, or the threat thereof, in order to deliver awards of the highest possible quality.16 The suggestion that dissenting opinions help ensure the quality of awards carries the questionable presumption that tribunals would perform less diligently without (the threat of) a dissenting opinion. This is of course not to suggest that all awards are perfect and that therefore dissent is inherently meritless. The point is simply that allowing dissenting opinions should in theory not make much – if any – difference to the quality of the award. Moreover, in practice, flawed awards are produced regardless of whether dissenting opinions are allowed or issued. A recent study, focused on the decisions of international investment tribunals, has identified a number of awards that contain “egregious failures.”17 Although dissenting opinions were allowed, these awards still fell below the standards of reasoning that may be expected of international arbitral tribunals. Instances in the review practice of the International Court of Arbitration of the International Chamber of Commerce (ICC) also illustrate that while dissent may sometimes contribute to improvements in the quality of awards, any such effect is by no means a given. In scrutinizing draft awards,18 the ICC Court of Arbitration has at times invited an arbitral tribunal to reconsider certain points of substance in light of a dissenting opinion.19 Assuming this has led to improvements, the dissents have indeed contributed to higher quality arbitral awards. Yet the fact that this required intervention by the Court also affirms that dissenting opinions do not ipso facto lead to improved awards, at least not without the involvement of a third party with the authority to call for (more) reconsideration. Greater Acceptance of the Award by the Losing Party Another point made in favor of arbitral dissent is that they can increase acceptance of the award by the losing party. Because dissenting opinions are likely to 16

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Cf. in this sense also A.J. van den Berg, “Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration” in M.H. Arsanjani et al. (eds) Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (Martinus Nijhoff Publishers and VSP, Leiden: 2011) 821, 823. See F. Ortino, “Legal Reasoning of International Investment Tribunals: A Typology of Egregious Failures” (2012) 3 Journal of International Dispute Settlement 31, 38–51 for discussion of such failures. Cf. Art. 33 Arbitration Rules of the International Chamber of Commerce (2012) available at . See P.J. Rees and P. Rohn, “Dissenting Opinions: Can They Fulfil a Beneficial Role?” (2009) 25 Arbitration International 329, 333.

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emphasize the arguments of the losing side (and thus demonstrate that they were thoroughly considered), the dissent would “result in greater confidence in the process from the perspective of the loser, and thus increase the possibility that the award will be complied with voluntarily.”20 This argument is also unconvincing. Good arbitral awards already make it clear that all points in support of the losing party were thoroughly considered, even if ultimately rejected. It is only to the extent that an award fails to do so that a dissent will have added value as an assurance to the disappointed party that its submissions were carefully considered. All else that a dissenting opinion might add to placate that party is merely “cosmetic satisfaction.”21 In these cases it would be an insult to their intelligence and good faith to assume that they need such a consolation prize in order to accept and comply with the award. Any meaningful benefits of dissent in international arbitration must lie elsewhere. Contribution to the Development of International Law From a systemic perspective, it can be argued that dissenting opinions are valuable because they (potentially) contribute to the development of international law. This is not merely a point of academic interest. In recent years there have been instances in which arbitral tribunals have favorably referred to dissenting opinions in other arbitrations for certain points of substance.22 Although exceptional, these instances show that well-reasoned and duly ­published dissent can influence other arbitrations and thus contribute to developments in the field (and, by implication, influence the development of international law). At the same time though, it should be kept in mind that the primary aim of arbitration is not to develop international law but to settle legal disputes in a fair, effective and final manner. It is no coincidence that many arbitral awards are not published – though this applies less to inter-state arbitration than to commercial and investment arbitration. Arbitration at its core remains an essentially private dispute settlement method in which the award in the first 20 21 22

Mosk and Ginsburg, note 14 at 272. Gaillard and Savage, note 14 at 766. Señor Tza Yap Shum v. Peru (7 July 2011) (ICSID Case ARB/07/6) at 22 [n. 11] (citing in approval the partial dissenting opinion of R. Volterra in Eastern Sugar v. Czech Republic (27 March 2007)); Helnan International Hotels v. Egypt (3 July 2008) (ICSID Case 05/19) at 39 [125] (in approval of the dissenting opinion of B.M. Cremades in Fraport AG Frankfurt Airport Services Worldwide v. Philippines (16 August 2007)); and Aguas del Tunari v. Bolivia (21 October 2005) (ICSID Case ARB/02/3) at 28 [n. 99] (the Tribunal observing that its view is closer to the dissent of A. Crivellaro than to the majority view in Société Générale de Surveillance v. Philippines (29 January 2004)).

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place “matters not as a guide to the opinions of a particular arbitrator, or as an indication of the future development of the law, but because it resolves the particular dispute.”23 It is therefore questionable whether a possible contribution of dissenting opinions to the development of the law is reason enough to conclude that arbitral dissent should not be prohibited. Intellectual Honesty and the Conscience or Duty of the Arbitrator Finally, perhaps the most important point in support of dissenting opinions is that they allow the arbitrator to act in accordance with his or her conscience when he or she fundamentally disagrees with the majority decision. The importance of this consideration should not be underestimated. De Bustamante y Sirven (Cuban delegate at the Second Peace Conference and later Judge at the Permanent Court of International Justice) warned early on, in relation to the dissent-unfriendly outcome of the 1907 Hague Convention, that La pratique future obligera à revenir ici sur ses pas, à reprendre le système libéral et juste de 1899. […] la conscience individuelle ne pourra se réfugier dans la résolution anonyme d’un groupe indéterminé.24 Arguably, an arbitrator would be unduly restricted if left without the means to put on record and explain his or her dissenting vote. One can imagine situations in which the need to dissent would be so paramount for a conscientious arbitrator faced with an unacceptable majority decision. A case in point would be the Op ten Noort arbitration,25 concerning the return of the Dutch steamship Op ten Noort. This ship had been captured by the Japanese Navy while serving as a hospital ship during the Second World War and subsequently scuttled after the end of hostilities. When the NetherlandsJapanese Property Commission decided by majority vote that Japan was not liable to return the wreck because it was located 0.9 miles beyond Japan’s territorial sea and therefore not “property in Japan,” the Dutch member could not but dissent to the decision that had been taken 23

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A. Redfern, “The 2003 Freshfields Lecture – Dissenting Opinions in International Comm­ ercial Arbitration: The Good, the Bad and the Ugly” (2004) 20 Arbitration Inter­national 223, 236. A.S. de Bustamante y Sirven La seconde conférence de la paix: réunie à La Haye en 1907 translated by G. Scelle (J.B. Sirey, Paris: 1909) 226. He also observed that « […] la situation d’un homme éminent qui accepte la charge honorable de faire partie d’un tribunal arbitral devient fort désagréable en présence d’une sentence qu’il réprouve, s’il ne lui reste ni le droit de justifier son vote, ni celui de faire savoir son opinion ». Case of The Netherlands Steamship Op ten Noort (The Netherlands/Japan) (Decisions I and II; 16 January 1961) 14 RIAA 501.

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[…] on the strength of a purely verbal construction and without even the slightest consideration for the moral aspects […] in which the ship was deliberately and illegally scuttled by the Japanese Navy and in that way reached the spot where it now lies.26 Accordingly, he declared I am unable to accept a decision rendered with such complete disregard for moral considerations on purely formalistic grounds which enable the perpetrator of an international delinquency to shield himself behind his own unlawful actions in order to escape his responsibility for the legal consequence of such delinquency.27 It shall be clear that the necessity of dissent in this case was one in which the individual conscience of the outvoted arbitrator would have outweighed most dissent policy considerations. In general, however, there is reason to be skeptical about any absolute need to express dissent. First, in contrast to the more frequent resort to dissenting opinions (i.e. disagreeing with the dispositif and reasoning) by party-appointed arbitrators, separate or concurring opinions (i.e. agreeing with the dispositif but not with all the reasoning) are rare.28 If the need to point out a perceived mistake in the award trumps other considerations – in particular the question whether the outcome is in favor or against the appointing party, there should be more concurring opinions. Secondly, we should also expect to see some dissents that run contrary to the interests or claims of the (winning) appointing party. Such dissenting opinions are virtually absent.29 This means that either the matches between the 26

Ibid., 522. Although the dissenting opinion is signed only as “Netherlands Member,” Pro­ fessor Soons will no doubt be pleased that the author of this dissent was our very own J.H.W. Verzijl. 27 Ibid. 28 Exceptions are, e.g., separate opinion Prof. Abi-Saab Micula, European Food, Starmill and Multipack v. Romania (11 December 2013) ICSID Case ARB/05/02; separate opinion N. Valticos Questions of the Tax Regime Governing Pensions Paid to Retired UNESCO Officials Residing in France (France/UNESCO) (14 January 2004) 25 RIAA 231 at 266; separate opinion Justice Sir Kenneth Keith Southern Bluefin Tuna (New Zealand/Japan; Australia/Japan) (4 August 2000) 23 RIAA 1 at 49. 29 There are, however, some rare instances of dissents by arbitrators who were not partyappointed: cf. dissenting opinion of Prof. Weil (Chairman) Tokios Tokelés v. Ukraine

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parties and party-appointed arbitrators are all made in heaven, or that there are cases in which arbitrators choose to remain silent rather than to issue their less convenient dissents. To the extent that this is the case, it would seem that the need or duty to express any dissent tends to be tied to the perceived impact on the interests of the appointing party rather than to an absolute necessity of intellectual integrity. A Review of Arguments against Dissenting Opinions Undermining the Authority of the Tribunal and Its Decision The oldest and principal argument against dissenting opinions in international arbitration is that they (can) undermine the authority of the arbitral award. As discussed earlier, at the Hague Peace Conferences it was feared that dissenting opinions would re-open debate on the merits and thus undermine the dispute settlement aim of arbitration.30 This concern still features in discussions on dissent.31 In contrast to permanent courts, the authority of an arbitral tribunal is temporary and restricted to the needs of the parties in a particular dispute. Arbitral tribunals are therefore feared to be more vulnerable to any undermining effects of dissenting opinions. Yet the authority of a tribunal and its decision should not stand or fall with the existence or absence of dissenting opinions. This authority is based on the agreement of the parties to arbitrate and to honor the binding award, supplemented by the relevant legal framework and the inherent authority of a wellreasoned decision. If a dissenting opinion has any weakening effect on the authority of an award, it is because the dissent points to actual flaws in the award.32 The dissent does not create them, it merely points them out. Any such effect is ultimately caused by the substandard reasoning or procedural defects rather than the dissent. It should be noted, though, that the formulation of the dissent matters too. Dissenting opinions must be clear and concise, but also respectful and polite. Some are not. Recently, Professor Abi-Saab accused the tribunal in ConocoPhillips v. Venezuela of withdrawing into a “make-believe world of its creation” and of producing an award that amounted to

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(29 April 2004) (ICSID Case ARB/02/18). For an instance of dissent by the Chair of a 1984 ICC Arbitration, see M. Arroyo “Dealing with Dissenting Opinions in the Award: Some Options for the Tribunal” (2008) 26 Swiss Arbitration Association (ASA) Bulletin 438 [n. 7]. See above notes 6 and 8. Cf. Rees and Rohn, note 19 at 339–340; Redfern, note 23 at 233. Cf. also Rees and Rohn, note 19 at 339.

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[…] a legal comedy of errors on the theatre of the absurd, not to say travesty of justice, that makes mockery not only of ICSID arbitration but of the very idea of adjudication.33 The language of a dissent like this could make for a good read, but should be avoided. Regardless of the merits, the wording of disrespectful dissents distracts from the substantive points of the disagreement between tribunal members and the lack of professional restraint reflects badly on international arbitration. Intensifying any Partisanship of Party-Appointed Arbitrators Dissent can also exacerbate deficiencies in the impartiality of party-appointed arbitrators. The record of dissenting opinions by party-appointed arbitrators (responsible for almost all dissents) speaks for itself. An analysis of 150 investment arbitration decisions has led Professor van den Berg to publish his concerns about the “nearly 100 percent score of dissenting opinions in favor of the party that appointed the dissenting arbitrator.”34 A similar concern would probably apply to international arbitration in general. While many awards are unanimous despite the option to dissent, there can also be pressure on arbitrators to cater to the interests of the party that appointed them. At times this also translates to partisan dissenting opinions, despite the duty of the arbitrators to be impartial and independent. The problem of partisan dissent has led some prominent international lawyers to suggest that party-appointment of arbitrators should be abolished,35 or that the duty of impartiality should no longer apply to party-appointed arbitrators.36 The latter would not get rid of partisan dissent, even if it would take away a level of tension. Rather, abolishing the impartiality oath would make the problem of partisan dissent worse, since it releases arbitrators from the duty to withstand any pressure to favor the appointing party. On the other hand, the abolition of party-appointed arbitrators would address the problem effectively. But there is little support for the idea, because the freedom of the 33 34 35 36

Dissenting opinion Prof. Abi-Saab ConocoPhillips Petrozuata, ConocoPhillips Hamaca and ConocoPhillips Gulf of Paria v. Venezuela (10 March 2014) ICSID Case ARB/07/30 at 24 [67]. Van den Berg, note 16 at 824. J. Paulsson, “Moral Hazard in International Dispute Resolution” (2010) 25 International Centre for Settlement of Investment Disputes Review 339. E. Lauterpacht, Aspects of the Administration of International Justice (Grotius Publications, Cambridge: 1991) 79–81 (arguing for the abolishment of the impartiality duty in the oath of party-appointed arbitrators).

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parties to appoint their preferred arbitrators is considered to be a more essential feature of arbitration.37 A Disincentive to Unanimous Decisions Some also suggest that allowing dissenting opinions could take away pressure on arbitrators to reach a unanimous decision.38 A dissenting opinion may be a tempting alternative to prolonged deliberations. An arbitrator that encounters resistance to his or her views could opt for a (premature) dissenting opinion rather than making more effort to reach a common decision. In addition, it has been suggested that the prospect of dissent could make the majority “less willing to give adequate consideration to the dissenter’s views because they expect he or she will dissent anyway.”39 It would seem, then, that the dynamics of tribunal deliberations can come with their own prisoner’s dilemma for the arbitrators. However, this dilemma cannot be entirely avoided when majority decisions are allowed. Prohibiting dissent could in fact make it worse. If dissenting opinions are out of the question, the majority could be less inclined to continue deliberations on issues standing in the way of unanimity. This is particularly so when the rule against dissenting opinions is supplemented by rules that prevent the votes from being revealed (since it cannot be indicated whether the decision was unanimous or not). Violations of the Confidentiality of Tribunal Deliberations Another concern is that dissenting opinions could violate the confidentiality of tribunal deliberations, which must take place in private and remain secret.40 Dissenting opinions should therefore only explain the disagreement on the divisive point, and not in any way refer to “views expressed individually by the arbitrators, their thought processes and the remarks made in the bargaining process through which they tried to reach unanimity or finally formed a majority.”41 Any dissent has to ensure that it does not cross the line that protects the confidentiality of the deliberations. 37

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Cf. C.N. Brower and C.B. Rosenberg, “The Death of the Two-Headed Nightingale: Why the Paulsson-Van den Berg Presumption that Party-Appointed Arbitrators are Untrustworthy is Wrongheaded” (2013) 29 Arbitration International 7. Smit, note 15 at 40; Gaillard and Savage, note 14 at 766 (saying it “has been argued”). Smit, note 15 at 41. Cf. e.g. Rule 15(1) ICSID Arbitration Rules (in effect 10 Apr. 2006); Note 2 to Art. 31 Rules of Procedure of the Iran-United States Claims Tribunal (adopted 3 May 1983). Rees and Rohn, note 19 at 338.

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In Case A/28 of the Iran-United States Claims Tribunal,42 Judge Broms crossed this line. In his dissent, he stated that a paragraph of the decision was unclear, as it had been “proposed by the President after the final deliberations had ended” and no “further deliberations” had taken place.43 The dissenting opinion also referred to views and proposals put forward during the deliberations.44 This led to a challenge in which the Appointing Authority (Sir Robert Jennings QC) held that the relevant passages were “a serious breach of the secrecy of the deliberations,” “ill-judged,” “a most serious error,” which for fear of repetition “could do great harm to the usefulness of the Tribunal’s deliberations, and to its efforts to find a consensus.”45 However unusual this case, it does illustrate that the secrecy of deliberations can be compromised by dissenting opinions that fail to take the relevant rules into account. Exposure of the Award to Legal Challenges Dissent could also expose the award to legal challenges. For one thing, decisions of in particular three-member tribunals with more than one dissenting opinion (there being a different majority on different sections of the decision) are vulnerable to the claim that there is no true majority for the decision.46 A claim to this effect was brought before the International Court of Justice in Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal).47 The disputed award had been adopted by a majority of the three-member tribunal. The president of the tribunal, Ambassador Barberis, had also appended a declaration in which he expressed the view that the reply given by the tribunal to a key question could have been more precise and formulated the partially divergent answer that he would have given.48

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United States v. Iran, Iran–U.S. Claims Tribunal Decision 130-A28-FT (19 December 2000) as reported in (2001) 95 American Journal of International Law 895. Ibid. Concurring and Dissenting Opinion Judge Broms (third-party arbitrator) [1], at 895. Ibid. [2] (stating that “during the deliberations I have defended the view that […]”) and [5] (stating that “I have proposed several times during the deliberations […]”). Decision of the Appointing Authority, Iran–U.S. Claims Tribunal (7 May 2001) 5–6 and 11, as set out above note 42 at 896–897. See for discussion S.M. Schwebel, “The Majority Vote of an International Arbitral Tribunal” in S.M. Schwebel (ed) Justice in International Law: Selected Writings (Grotius Publications, Cambridge: 1994) 213. Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal) Judgment, ICJ Reports 1991, 53. Ibid. at 60 [19].

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Judge Bedjaoui dissenting, stated that the declaration of the President, “by its very existence as well as by its contents, justifies more fundamental doubts as to the existence of a majority and the reality of the Award.”49 Guinea-Bissau took this as a reason to refuse to accept the award. It argued that the declaration was de facto a dissent since it was irreconcilable with the decision. Lacking a true majority, the award was therefore inexistent, or null and void.50 The Court dismissed this argument. It held that the declaration did not contradict the award and that even if it had, “such a contradiction could not prevail over the position which President Barberis had taken when voting for the Award.”51 The Court explained […] it sometimes happens that a member of a tribunal votes in favour of a decision of the tribunal even though he might individually have been inclined to prefer another solution. The validity of the vote remains unaffected by the expression of any such differences in a declaration or separate opinion of the member concerned, which are therefore without consequence for the decision of the Tribunal.52 Having more than one dissenting opinion to the same award therefore does not threaten the validity of the award. What matters is the vote on the dispositif. Another issue – affecting commercial and investment arbitration rather than inter-state arbitration – is that dissenting opinions can provide ammunition for domestic challenges against arbitral awards. Dissents may reveal procedural irregularities that affect the validity of that award. In particular, the New York Convention allows for the recognition and enforcement of an award to be refused if the arbitral procedure was not in accordance with the agreement of the parties or with the lex arbitri.53 There are cases that illustrate the difficulties to which dissents can lead before national courts.54 The risk of challenges should therefore not be taken lightly. However, if dissenting opinions reveal serious flaws in the arbitration 49 50 51 52 53 54

Ibid. at 61 [20] (para. 61 of the dissenting opinion). Ibid. at 63 [30]. Ibid. at 64 [33]. Ibid. at 64–65 [33]. Art. V(1)(d) Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) 330 UNTS 38. Cf. the saga surrounding the challenge to CME v. Czech Republic (Partial Award 13 September 2001) before the Svea Court of Appeal (Case T 8735-01) based on the dissenting opinion of J. Hándl.

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which subsequently lead to challenges, this can hardly be seen as a true disadvantage of dissent.55 Where We Now Stand on Prohibitions on Dissent More than 25 years ago, an ICC Working Party on Dissenting Opinions and Interim and Partial Awards, concluded that “it is neither practical nor desirable to attempt to suppress dissenting opinions; and that, accordingly, it is better to provide practice guidelines.”56 This view remains the norm today, often expressed in relation to international commercial and investment arbitration.57 The majority view – in legal commentary as well as in practice58 – is that dissenting opinions should, if necessary, be discouraged but not prohibited. It is held that the need for dissenting opinions “cannot be denied,” and that “to prohibit them could well transform the form of expression of dissent into something much less acceptable.”59 Prohibiting dissent would also “impede further development of the field.”60 However, there is reason to doubt the presumed harm to arbitration. While it is possible to imagine situations in which limitations on the ability of the arbitrator to dissent can be problematic, it seems unlikely that arbitrators faced with a prohibition on dissenting opinions will respond with destructive tactics as a result. Moreover, skepticism is also warranted because the legal scope and consequences of prohibitions on dissent have not yet been studied in any detail. It is unwise to oppose something potentially beneficial in certain cases without first examining how it would work.

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As Rees and Rohn, note 19 at 340 observe, such awards “deserve no protection.” Final Report on Dissenting and Separate Opinions of Working Party on Dissenting Opinions and Interim and Partial Awards, adopted 21 April 1988 (1991) 2 ICC International Court of Arbitration Bulletin 32 at 33 [6] (this conclusion was adopted despite the objections of the French National Committee, which wanted the ICC to prohibit dissenting opinions). See e.g. Mosk and Ginsburg, note 14 at 283; Gaillard and Savage, note 14 at 766; Rees and Rohn, note 19 at 330; L. Levy “Dissenting Opinions in International Arbitration in Switzerl­ and” (1989) 5 Arbitration International 35, 42. Prominent international arbitration rules, such as those of the Permanent Court of Arbitration (PCA), the United Nations Commission on International Trade Law (UNCITRAL), the ICC, and the London Court of International Arbitration (LCIA) are silent on dissenting opinions. Dissent is not encouraged, but not prohibited either. Rees and Rohn, note 19 at 330. Cf. Brower and Rosenberg, note 37 at 7.

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Legal Aspects of Prohibitions on Dissenting Opinions

International rules that prohibit dissent can have different sources. First, dispute settlement provisions in a convention could provide for arbitration while precluding the arbitrators from issuing dissenting opinions. Second, institutions that administer international arbitrations may adopt a prohibition on dissenting opinions. Third, parties that agree to have their dispute settled through arbitration can themselves stipulate that dissenting opinions are not allowed. Finally, the tribunal itself may issue a rule against dissenting opinions if it is left to the tribunal to adopt rules of procedure on the matter. There is very little precedent on any of these options. Although the 1907 Hague Convention, the United Nations Commission on International Trade Law (UNCITRAL) Rules, and the ICC Arbitration Rules all have at one point faced a call for adding a prohibition on dissenting opinions, none have resulted in such a rule. Aside from Iron Rhine, the closest precedent is an implicit prohibition in the Schlessiger arbitration between Germany and Romania in 1935.61 The rules of procedure adopted by the tribunal provided that “La sentence sera signée par les trois arbitres et le secrétaire. Elle n’indiquera pas le nombre de voix auquel elle aura été prise.”62 This obligation to sign the award, together with the requirement that the award shall not reveal the votes, suggests that no record of any dissent – let alone a dissenting opinion – was allowed. A similar intent not to disclose dissenting votes also appears in earlier arbitrations, with the difference that in these arbitrations the president was the only tribunal member to sign.63 This leaves us with the Iron Rhine rules as the only publicly available example of an explicit prohibition on dissenting opinions in modern international arbitration. Although the rules were based on the 1992 Permanent Court of Arbitration (PCA) Optional Rules for Arbitrating Disputes between Two States (those rules themselves are silent on dissent),64 Belgium and The Netherlands 61 62 63

64

Affaire Schlessiger (Germany/Romania) (15 April 1935) 3 RIAA 1639. Ibid. at 1641 (Rule B). See e.g. The “Carthage” (France/Italy) (6 May 1913) 11 RIAA 449; Russian Claim for Inde­ mnities (Russia/Turkey) (11 November 1912) 11 RIAA 421; and Grisbådarna (Norway/ Sweden) (23 October 1909) 11 RIAA 147 (tribunal chaired by J.A. Loeff – the Dutch delegate at the 2nd Hague Peace Conference who had successfully called for deletion of the rule on a record of dissent). Art. 31(1) PCA Optional Rules for Arbitrating Disputes between Two States (effective 20 October 1992) simply states that any award or other decision “shall be made by a majority of the arbitrators.” Cf. also Art. 33(1) of the 2012 PCA Arbitration Rules (effective 17 December 2012).

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decided to add the rule that: “No separate nor [sic] dissenting opinions shall be attached to the final award or to any [interim, interlocutory, or partial] award.”65 At the same time, the Iron Rhine rules remain identical to the PCA rules in regard to the obligation to sign the award. Both sets of rules require the arbitrators to sign and stipulate that, if any of them fail to sign, “the award shall state the reason for the absence of the signature(s).”66 The Scope of Rules that Preclude Dissenting Opinions The rule that applied in the Iron Rhine arbitration prohibits “dissenting opinions” from being “attached” to the award. However, it does not require much imagination to consider alternative expressions of arbitral dissent. The question is whether those options still fall within the scope of prohibitions on dissenting opinions. Dissenting View Incorporated in the Award The attachment of a dissenting opinion to an award should be a matter of last resort. If the award adequately addresses the arguments raised by the outvoted arbitrator, there is no need for him or her to issue a dissenting opinion.67 There are multiple ways to address dissenting arguments in a way that avoids the need to attach a dissenting opinion to the award.68 For example, in Vannessa v Venezuela69 one of the tribunal members disagreed with the majority on a matter of jurisdiction. The tribunal, chaired by Professor Lowe QC, addressed this by setting out the majority position as well as that of the (anonymous) dissenting arbitrator, and then explaining why the majority disagreed with the dissenter.70 Having incorporated the dissent on jurisdiction in the text of the award, the tribunal thus avoided any need for the attachment of a dissenting opinion on the matter. In general it will be good practice to weave any dissent into the fabric of the award. The question is, however, whether a prohibition on dissenting opinions would also preclude the expression of any dissent in the award. If one takes a very legalistic approach, there is room to argue that a rule stipulating that “no 65 66 67 68 69 70

Art. 18(1) – incl. reference to Art. 19(1) – of the Iron Rhine Rules, note 2. Ibid. Art. 19(4); Art. 32(4) PCA Optional Rules, note 64. Cf. Rees and Rohn, note 19 at 341–342 (guideline no. 1). See Arroyo, note 29, at 459–464 for an analysis of different options to deal with dissents in the award. Vannessa Ventures v. Bolivarian Republic of Venezuela (16 January 2013) ICSID Case ARB(AF)/04/6. Ibid. see especially at 32–33 [113–114].

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dissenting opinion shall be attached to the award” does not preclude the expression of dissenting views in the award (perhaps even more so if the dissent remains anonymous). If this argument would be accepted, the prohibition actually promotes the incorporation of any dissent in the award since the option of attaching it to the award is taken away. But there is more to be said for prudence and restraint on this question. Setting out the dissenting views of an outvoted arbitrator in the award would seem to breach, if not the letter, at least the spirit of a prohibition on dissenting opinions. If the parties intended to ban dissenting opinions, they most likely also intended to prevent any disclosure and discussion of the dissenting views of an arbitrator within the award. In fact, the Parties could object even more to dissent in the award than to attached opinions, the latter not deemed to be part of the award.71 Depending on the exact formulation of the prohibition, even the mere disclosure in the award of a view as being a minority position within the tribunal could breach a rule against dissent. Dissent not Issued together with the Award Dissenting opinions are usually released simultaneously with the award, either attached to it after the signature page or in a separate document alongside the award. However, dissents have at times been issued before or after the date of the award. While there is no rule in international law against doing so, issuing dissent after the award can be problematic. As a practical matter, dissenting opinions should be made available to the tribunal well before it finalizes the award in order to allow opportunity for re-evaluation and response. Moreover, for various formal reasons, other tribunal members and the administering institution could be reluctant to issue a dissenting opinion that is significantly later than the award. The latter appears to have caused problems for a dissent by Professor Bello Janeiro issued almost two weeks after the award in Siemens v. Argentina.72 In a later explanation regarding this dissent, he explained that he had had to insist that his individual opinion should be attached to the award and be sent to the

71

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Cf. for example Art. 48(4) Netherlands Arbitration Institute Arbitration Rules (in effect 1 January 2010) stating that: “No mention shall be made in the award of the opinion of a minority of the arbitrators,” but that in an international arbitration “a minority may express its opinion to the other arbitrators and to the parties, in a separate document [which] shall not be deemed to form part of the award.” (Emphasis added.) Siemens v. Argentina (17 January 2007) ICSID Case ARB/02/8, and the Separate Opinion (in substance closer to a dissenting one) of Prof. Bello Janeiro (30 January 2007).

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parties, arguing that his dissent was not too late despite being delayed.73 The dissent was ultimately published and dispatched to the parties, although it can hardly be said that it was “attached to” the award. This in turn could lead to questions as to the scope of a prohibition on dissenting opinions if the rule at hand merely precludes dissent attached to the award. It could be that a dissent comes too late for it to be “attached” to the award. An attempt could also be made to send the dissent directly to the parties, or even to make it available in the public domain rather than to attach it to the award. Would these alternatives still be covered by a prohibition on the attachment of dissenting opinions to an award? Any serious answer here must be yes, since it would make a mockery of a rule against dissent to hold that the prohibition then no longer applies. A related complication can arise in the form of deadlines that could apply to the issuing of the award and any dissent.74 It has been suggested that, if a dissenting opinion is issued after the time limit, “the opinion would stricto sensu not be a dissent but a comment on the award by a former arbitrator.”75 Now a deadline cannot be compared to a prohibition. But the status of a document that strictly speaking is no longer a dissenting opinion does bring us to the definitional scope of rules against dissent. If the dissent does not come as an “opinion” but rather as a “comment,” “note of disagreement,” or even “dissenting award,”76 is it still covered by the prohibition on dissenting opinions? The most reasonable answer to this question would have to be that the prohibition would still apply. Prohibitions on dissent cannot be avoided by playing name or delay games. If the parties have agreed, as was done in Iron Rhine, that no separate or dissenting opinions shall be added to the award, they want an award without dissent. Just the award. No statements of views – by whatever name and with whatever timing and mode of “attachment” – that disagree with the dispositif and/or the underlying reasoning. 73 74

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Opinion Prof. Bello Janeiro, Daimler v. Argentina (22 August 2012) ICSID Case ARB/05/1 (at n. 4). E.g. Rule 46 ICSID Arbitration Rules, note 40, providing that the award (including any individual or dissenting opinion) shall be drawn up and signed within 120 days after closure of the proceeding. Levy, note 57 at 41 (here also asking: “Is a former arbitrator permitted to notify to the parties his dissenting opinion or his personal views about the award?”). See F.P. Donovan, “Dissenting Opinions” (1996) 7 ICC International. Court of Arbitration Bulletin 76, 76 for an ICC arbitration in which a party-appointed arbitrator insisted on entitling his dissent “Dissenting Award.”

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Adding an Indication of Dissent to the Signature Most international arbitration rules require all tribunal members to sign the award. Sometimes, to emphasize that the signature does not entail agreement with the decision, an arbitrator will accompany the signature by an “I dissent,” or an “I dissent on matter X.” In the Abyei arbitration, Judge Al-Khasawneh (who provided a dissenting opinion) added “I Dissent” below his name and signature.77 Similarly, in the Bay of Bengal arbitration, Arbitrator Rao added “concurring in part and dissenting in part” below his signature (in addition to his partly concurring and partly dissenting opinion attached to the award).78 And in North Atlantic Coast Fisheries,79 Arbitrator Drago stated below his signature Signing the Award, I state pursuant to Article IX clause 2 of the Special Agreement my dissent from the majority of the Tribunal in respect to the considerations and enacting part of the Award as to Question V.80 The statement also announced that his “grounds for dissent” had been filed at the International Bureau of the PCA.81 In these cases, the comments accompanying the signature do not constitute nor replace a dissenting opinion. They merely announce the fact of their dissent. Still, it could be asked whether such comments fall within the scope of prohibitions on dissent. This question is difficult to answer in abstract without taking into account the wording of the rules that apply to the specific case in question. If we take the rule that applied in the Schlessiger arbitration,82 any indication of dissent at the signing of the award is clearly not allowed. Even a simple “(dissenting)” or “I dissent” would breach the rule that the award “shall be signed by the three arbitrators” and “shall not reveal the votes” by which the decision is reached. In contrast, the Iron Rhine rules leave more room for doubt. In addition to the prohibition on dissenting opinions, the rules of procedure also stipulated that 77 78 79 80

81 82

Arbitration between the Government of Sudan and the Sudan People’s Liberation Movement/ Army on Delimiting the Abyei Area (22 July 2009) at 270 available at . Bay of Bengal Maritime Boundary Arbitration (Bangladesh/India) (7 July 2014) at 167 available at . North Atlantic Fisheries Case (Great Britain/United States) (7 September 1910) 11 RIAA 167. Ibid., at 202. Article IX provided, inter alia, that the decision shall be “signed by each member of the Tribunal” but that “a member who may dissent from the decision may record his dissent when signing.” Ibid. (entitled “Grounds for the Dissent to the Award on Question V by Dr. Luis M. Drago”). Affaire Schlessiger, note 61.

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the award “shall be signed by the arbitrators.”83 However, rather than adding that the votes shall remain secret, one of the rules further stated that “if any of the arbitrators fails [sic] to sign, the award shall state the reason for the absence of the signature(s).”84 This rule in fact replicates a similar provision in the PCA Optional Rules, which served as basis for the Iron Rhine rules.85 Since the PCA rules are silent on dissent, it is unlikely that this provision is meant to be an alternative basis for a statement of (the reasons for) dissent when an arbitrator refuses to sign. The more difficult question is whether an arbitrator who does sign the award as required may, in doing so, put on record that he or she dissented. Two considerations suggest that it would probably be allowed. First, a comment along the lines of “(dissenting),” “I dissent,” and even “I dissent on matter X,” i.e. without explanation, simply reveals that there is dissent. It is a statement of fact, not a reasoned opinion. A dissenting opinion explains the dissent; the opinion provides an alternative view on a decision and the underlying reasoning. Although these opinions can be short, it is virtually impossible to construct a dissenting opinion from at most a handful of words. A line should be drawn at any statement that purports to explain the dissent. For instance, a phrase along the lines of “I am dissenting for the reasons so ably expressed in the majority opinion”86 can be amusingly effective, but arbitrators bound by a prohibition on dissenting opinions would be well advised not to add a statement like this. The other consideration is historical. The 1899 Hague Convention provided that the tribunal members who found themselves in the minority “may record their dissent when signing.”87 This provision was deleted from the 1907 Convention after the Dutch request to the committee revising the text to reconsider it, so as to allow “that record of the dissent of the minority of the judges be forbidden.”88 However, while agreeing to the removal of the rule, the committee also observed […] that it would perhaps be rather severe to require that the judges, whose ideas are not contained in the decision, should be obliged to sign the same without being able to set forth their disagreement.89 83 84 85 86 87 88 89

Art. 19(4) Iron Rhine Rules, note 2. Art. 19(4) Iron Rhine Rules, note 2. Cf. Art. 32(4) PCA Optional Rules, note 64. Cf. Redfern, note 23 at 228 (referring to an “English jurist who is reported to have said: ‘I am dissenting for the reasons so ably expressed in the majority opinion’”) (ref. omitted). Art. 52 (2nd para.) 1899 Hague Convention, note 5. Statement by Mr. Loeff, note 8 at 364. Report of Baron Guillaume, note 13 at 435.

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With this in mind, the committee proposed “a provision which should no longer imply a signature of the award by all of the arbitrators.”90 The ensuing amendment accordingly provided that the award shall only be signed by the president of the tribunal and the registrar or secretary.91 This background suggests that it cannot be presumed that, when arbitrators are required to sign the award but not allowed to provide dissenting opinions, they are also precluded from recording their dissent.92 Especially so, moreover, when no provision is made to preserve vote anonymity. Putting a dissenting vote on record upon signing is not the same as providing a dissenting opinion. If both are intended to be prohibited, the rules should state this expressly. Withholding the Signature as a Form of Dissent It is common practice for all arbitrators to sign the award, even if they dissent from the majority decision.93 The signature affirms the participation of the arbitrator in accordance with the established procedure, without necessarily implying agreement with the decision itself. It affirms that the arbitrator voted, but not how. Rules often require all arbitrators to sign the award, without exempting dissenting arbitrators.94 In contrast, any rules that do allow arbitrators to withhold their signature make this point very clear. For instance, the London Court of International Arbitration (LCIA) Arbitration Rules provide that the award “shall be signed by the Arbitral Tribunal or those of its members assenting to it.”95 The implication here is that dissenting arbitrators may refuse to sign.96 90 Ibid. 91 Art. 79 of the 1907 Convention, note 7; cf. Report of Baron Guillaume, note 13 at 435–436. 92 Cf. also commentary to Art. 28 Project for the Establishment of a Court of Arbitral Justice, note 13 at 385 on whether “a judge who does not concur with the majority has a right to have the fact of his dissent recorded, even though he does not deliver a dissenting opinion.” The authors were “unwilling to decide this delicate question.” Instead, “to prevent the implication of assent or dissent, it is provided that the judgments and decrees…are to be signed by the president and clerks.” 93 Cf. Lord Millett, Eurotunnel (Channel Tunnel Group and France-Manche/UK and France) (30 January 2007); N. Valticos, France/UNESCO, note 28; Prof. F. Orrego Vicuña Dispute concerning Responsibility for the Deaths of Letelier and Moffitt (US/Chile) (11 January 1992) 25 RIAA 1. 94 Cf, e.g., Art. 34(4) PCA Arbitration Rules 2012, note 64; Art. 32(4) Iran–US Claims Tribunal Rules, above n. 40; Art. 18(6) Eritrea–Ethiopia Claims Commission Rules; Rule 47 ICSID Rules, note 40. 95 Art. 26.2 Arbitration Rules of the LCIA (effective 1 October 2014). 96 Cf. also ibid., Art. 26.6 (“If any arbitrator refuses or fails to sign the award”; emphasis added).

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Some rules are more ambiguous as to whether an arbitrator may withhold his or her signature in dissent. The PCA rules, for example, require arbitrators to sign the award but also provide that if any of them fail to do so, the award shall state the reason for the absence of the signature(s).97 Such a rule applied in Iron Rhine.98 A rule to this effect raises two questions when coupled to a prohibition on dissent. First, does it imply that an outvoted arbitrator is allowed to withhold the signature despite the prohibition on dissenting opinions? Second, may the statement of the reason for the absence of the signature include the reasons for the dissent? The history of an equivalent provision in the UNCITRAL arbitration rules suggests that the answer to both questions is no. As to the requirement in the UNCITRAL rules that an award shall be signed by the arbitrators,99 an authoritative commentary states that the rule imposes an obligation to sign on all tribunal members and that a “failure to sign the award, where signing is possible, arguably constitutes a breach of the arbitrator’s duties.”100 The official commentary on an earlier version of this rule affirms this. It explained that there was “general agreement that all the arbitrators, including an arbitrator who dissented from the award, should be required to sign the award.”101 As to the stipulation that the award shall state the reason for the absence of any signature,102 the drafting history reveals that it is not an authorization for statements that set out a dissenting opinion. In fact, the rule had initially prohibited this explicitly. A preliminary draft had specified that the award “shall state the reason for the absence of an arbitrator’s signature, but shall not include any dissenting opinion.”103 Various delegations criticized the phrase on dissent. First, it could wrongly suggest that dissent was a valid reason for not signing.104 Moreover, it was held that the question of dissenting opinions

97 98 99 100 101 102 103 104

Art. 34(4) PCA Arbitration Rules 2012, note 64. Art. 19(4) Iron Rhine Rules, note 2. Cf. also Art. 32(4) PCA Optional Rules, note 64. Art. 34(4) UNCITRAL Arbitration Rules (as rev., effective 15 August 2010, amended 2013). D.D. Caron and L.M. Caplan The UNCITRAL Arbitration Rules: A Commentary, 2nd edn (Oxford University Press, Oxford: 2013) 746 (note omitted). UNCITRAL Report on the Work of its Ninth Session (12 April to 7 May 1976) (UN Doc. A/31/17) 7 UNCITRAL Yearbook 78 [163]. Art. 34(4) UNCITRAL Arbitration Rules, note 99. Preliminary Draft Set of Arbitration Rules for Optional Use in Ad Hoc Arbitration Relating to International Trade (UN Doc. A/CN.9/97) 6 UNCITRAL Yearbook 177 (Art. 26, para. 3). Cf. Comment by Mr. Roehrich (France) UNCITRAL 9th Sess., 11th mtg. (21 April 1976) UN Doc. A/CN.9/9/C.2/SR.11 at 7 [40].

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and the duty to sign should not be confused by an unnecessary link.105 The phrase on dissent was accordingly deleted. Matters of dissent and the duty to sign are distinct. A prohibition on dissenting opinions should not lead to refusal to sign when the rules require the signature of all the arbitrators. A fortiori, a refusal to sign should not be used to smuggle a dissenting opinion through the backdoor of the obligation to state the reason for the absence of the signature. The tribunal must see to it that the prohibition is respected and that the validity of the award is not threatened by a rogue dissenter refusing to sign. Potential Legal Consequences of Prohibited Dissent Arbitrators who are allowed to attach a dissenting opinion to an international arbitral award have an entitlement rather than an obligation to do so.106 So when dissenting opinions are prohibited, there is no question of conflicting legal obligations. Still, situations could arise in which an arbitrator could feel morally obliged to dissent despite a prohibition on dissenting opinions. If this were to occur, questions will probably arise as to the validity of the award and perhaps as to the liability of the arbitrator(s) and of any arbitral institution involved. Validity of the Award Remains Unaffected An award cannot lose its international legal validity merely because it is burdened by a dissenting opinion in breach of a rule against it. Aside from the complication of any dissent incorporated into the body of the award, dissenting opinions are in general both physically and legally not part of the award.107 Irregularities of dissent therefore cannot render the award invalid. 105 Comment by Mr. Melis (Australia), ibid. at 5 [27]. 106 Cf. in this sense also the standard formulation “may attach” in, e.g., Art. 48(4) ICSID Convention, above note 3; and Art. 10 Annex VII (Arbitration) UNCLOS, note 3 (emphasis added). However, some rules appear to make the statement of any dissenting opinions mandatory. Rule 15(e) of the Internet Corporation for Assigned Names and Numbers (ICANN) Rules for Uniform Domain Name Dispute Resolution Policy (approved 30 Oct. 2009; in effect 1 Mar. 2010) provides that any dissenting opinion “shall accompany the majority decision” (emphasis added). Also, Art. 39(1) Bulgarian Law on International Commercial Arbitration (as amended 20 July 2007; in effect 1 March 2008) stipulates that an arbitrator “who disagrees with the award shall state his/her dissenting opinion in writing” (emphasis added). 107 For an exception cf. Arroyo, note 29, at 65 mentioning that under Section 10.4 of the Rules of the Arbitration and Mediation Center of the Chamber of Commerce Brazil-Canada, dissenting opinions “shall be part of the award.”

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As discussed earlier, in the Arbitral Award of 31 July 1989 case the Court held that the validity of an award is not affected by any dissent attached to the award.108 If a properly issued dissent (i.e. conform the rules of procedure) cannot affect the validity of an award, a fortiori an irregular dissent (i.e. which breaches a rule against dissent) cannot render the award invalid. It would indeed “be paradoxical, to say the least,” if an outvoted arbitrator could set out to violate a prohibition on dissenting opinions in order to “affect the validity of the award to which he or she is opposed.”109 It should be noted, however, that the Court also held that the validity of an award could be affected if the tribunal acts in “manifest breach” of its competence and that Such manifest breach might result from, for example, the failure of the Tribunal properly to apply the relevant rules of interpretation to the provisions of the Arbitration Agreement which govern its competence.110 The Court further emphasized that […] when States sign an arbitration agreement, they are concluding an agreement with a very specific object and purpose: to entrust an arbitration tribunal with the task of settling a dispute in accordance with the terms agreed by the parties.111 Nevertheless, these passages are concerned with a possible breach of the tribunal’s competence “either by deciding in excess of, or by failing to exercise, its jurisdiction.”112 The breach of a rule against dissent is not a matter of jurisdiction. The disregard of a prohibition on dissenting opinions would be a serious violation of an important rule of procedure, but the prohibited dissent does not constitute a jurisdictional wrong that could render the award invalid under international law. Similarly, the New York Convention does not allow for refusals to accept the validity of an award on the ground of a breach of a prohibition on dissent.113 108 See Arbitral Award of 31 July 1989, note 47 at 65 [33]. 109 Gaillard and Savage, note 14 at 766 [1400]. 110 Arbitral Award of 31 July 1989, note 47 at 69 [47–48]. 111 Ibid., 70 [49] (emphasis added). 112 Ibid., 69 [47]. 113 But it could be, if under the lex arbitri an award would be invalid due to failure to observe a prohibition on dissenting opinions. See Art. V(1)(e) New York Convention, note 53.

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This would not be a matter of jurisdictional competence and dissenting opinions attached to the award are not part of the award. Therefore the situation would fail to meet the exception that the award “contains decisions on matters beyond the scope of the submission to arbitration.”114 Moreover, even if the exception would apply, it would still be subject to the exclusion that […] if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced.115 If a problematic part of an award can be severed to save the validity of the remainder, it stands to reason that any prohibited dissent can also be severed from the award to ensure the award’s validity. This not only when the dissent is attached to the award, but also if it has in some way been incorporated in the body of the award. Potential Liability for Breaches of Prohibitions on Dissent Even if the attachment of prohibited dissenting opinions will not render an award invalid (and therefore it is difficult to see how damages could arise), the breach of the prohibition could give rise to liability for disregard of that rule. The Iron Rhine rules have no provision on the liability and immunity of the arbitrators. The PCA Optional Rules on which these rules were based are equally silent on this matter. But the 2012 PCA Arbitration Rules do provide that the parties “waive, to the fullest extent permitted under the applicable law, any claim against the arbitrators…in connection with the arbitration.”116 The ICC Rules similarly provide that arbitrators (and the ICC) shall not be liable “except to the extent such limitation of liability is prohibited by applicable law.”117 The UNCITRAL Rules limit liability “to the fullest extent permitted under the applicable law,” except for “intentional wrongdoing.”118 Like­wise, the LCIA Rules exclude liability, save for “conscious and deliberate wrongdoing.”119

114 Ibid., Art. V(1)(c). 115 Ibid. 116 Art. 16 PCA Arbitration Rules, note 64. 117 Art. 40 Arbitration Rules of the ICC (in force 1 Jan. 2012). 118 Art. 16 UNCITRAL Arbitration Rules, note 99. 119 Art. 31.1 LCIA Arbitration Rules, note 95.

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These provisions point us in the direction of two categories for any liability for violations of a prohibition on dissent: legislation, and bad faith in the sense of intentional wrongdoing. For present purposes, both point to the same basic standard. While national legislation varies on the matter of liability and immunity, a common denominator in virtually all jurisdictions is that arbitrators can be held liable for acts or omissions committed in bad faith as deliberate wrongdoing.120 Although there is no generally applicable rule in international law on arbitrator liability and immunity, the intentional breach of a key rule adopted to preclude dissenting opinions amounts to a bad faith contravention of the arbitral mandate. In this sense it is “intentional wrongdoing,” regardless of whether actual damage was intended or caused by the breach. The above considerations are not meant to imply that in all cases, and for whatever reason, a breach of a rule against dissenting opinions will lead to liability. But it shall be clear that the deliberate disregard of a prohibition on dissenting opinions in an international arbitration is a serious matter that must not occur.

Concluding Remarks

There is nothing inherently wrong with the current laissez-faire approach in international law to rules on dissent in international arbitration. Arbitration owes much of its success to its ability to adapt, in a fair and effective manner, to the needs and wishes of the parties to the dispute. It seems wise, therefore, to leave it to the parties to decide if they want to avoid some of the problems of dissent (and forego some possible benefits) by adopting a rule that prohibits the attachment of dissenting opinions to the award. However, prohibitions on dissenting opinions can have unintended consequences and cause serious difficulties if they are not formulated very carefully. All possible variations of dissent need to be considered. It is therefore not advisable to merely stipulate, as the Iron Rhine rules did, that no separate or dissenting opinions shall be attached to the award and then simply leave it at that. If dissenting opinions are prohibited, the rules should also make it clear whether other expressions of dissent are precluded, such as any incorporation of the view of a dissenting arbitrator in the body of the award and any dissent-containing explanation of the refusal to sign or other indication of a dissenting vote. 120 See for analysis S.D. Franck “The Liability of International Arbitrators: A Comparative Analysis and Proposal for Qualified Immunity” (2000) New York Law School Journal of International and Comparative Law 1, 11–15 and 31–49.

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Prohibitions on Dissenting Opinions

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At the same time, it should be stressed that every arbitrator, dissenting or not, carries a heavy responsibility to uphold the quality and integrity of arbitration as a just and effective institution for the binding settlement of international disputes, and in doing so to ensure the correct application of the law. Prohibitions on dissenting opinions could perhaps make the task more complex, but they do not diminish this fundamental responsibility. The prohibitions imply a profound trust in whatever (majority) decision the tribunal will reach, and its members must cooperate to the fullest possible extent to ensure that this trust is deserved.

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