It must be said at the outset that dissenting opinions do not appear to have created frequent or unduly serious problems for the practice of the Court. The question was comprehensively dealt with in a report of the Working Party on Dissenting Opinions and Interim Partial Awards set up by the ICC Commission on International Arbitration. (The relevant section of the Report is published in the Bulletin, Vol. 2/No. 1 of June 1991.)

The first point to note is that Dissenting Opinions are not mentioned in the Rules of the Court and, in particular, not in the Scrutiny of Awards Section 21. The only reference is in Article 17 of the Internal Rules where it is said that the Court, in its Scrutiny of Awards under Section 21, "pays particular attention to the respect of the formal requirements laid down by the law applicable to the proceedings and, where relevant, by the mandatory rules of the place of arbitration, notably with regard to the reasons for awards, their signature and the admissibility of dissenting opinions".

The Working Party referred to the strong views expressed by the National Committee that dissenting opinions should, in effect, be prohibited in the ICC arbitration system. But a majority of the Working Party, and of the Commission, did not share this view.

ICC arbitrators come from a wide range of different legal systems (in 1995 from 62 different countries). In the same way the applicable laws, both procedural and substantive, vary greatly. It is not surprising then that arbitrators may reach different conclusions on the interpretation of these laws. In the same way they may reach different conclusions as to the effect of the evidence coming before the tribunal. In a sense, therefore, dissenting opinions are accepted by the Court as a "fact of life" - inevitably possible but not necessarily universal or "obligatory".

What then is the practice of the ICC Court in respect of such opinions?

In the first place, a dissenting opinion is not an award, nor indeed part of an award. This may seem obvious, but in a recent case the dissenting arbitrator headed his opinion "Dissenting Award". After the Arbitral Tribunal's Chairman queried this description, the arbitrator changed the heading to "Dissenting Opinion". But, in another reversal, he insisted on retaining the expression "Dissenting Award". This case had been bitterly fought. The defendant at one stage had obtained a court order restraining the Tribunal from proceeding with the action. To which the claimant had replied by obtaining a Singapore (place of arbitration) court order requiring the Arbitral Tribunal to continue with the arbitration. It would seem likely that the dissenting arbitrator (nominated by the defendant) had in mind the possibility of a challenge to the award or objection to its enforcement by the courts of the defendant's country.

In another recent case, a dissenting opinion contained a brief passage which, in the view of the Reporter, might be regarded as breaching the confidentiality of the Tribunal's deliberations. The majority of the Arbitral Tribunal had agreed on notification of the dissent to the parties. The ICC Court instructed the Secretariat to contact the Chairman of the Arbitral Tribunal to ascertain if he thought the dissenting arbitrator would agree to the deletion of the passage in question before notification. It is understood, however, that the Chairman did not wish to take any action, influenced by the view that the passage was inaccurate in its presentation of the facts - and that the parties would be aware of this.

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Since, as has been pointed out, a dissenting opinion is not an award, its substance is not approved or disapproved by the Court. If the dissenting opinion is available at the same time as the ICC Court reviews the award, it is "laid" before the Court. On occasion, when the dissenting opinion appears strongly persuasive, particularly on points of interpretation of the applicable law, the Court may consider drawing the attention of the majority to such points (of substance) if it thinks there is some weakness in the reasoning of the majority in respect thereof, as provided in Article 21.

An occasional problem has arisen when, in the case of a three-member tribunal, there is more than one dissenting opinion. So far as the actual award is concerned, the matter is governed by Article 19. If the majorities are "shifting" on the different issues, then, in practice the Court may insist on a short summary before the dispositive section indicating the conditions in which each decision was taken on the claims i.e. unanimous, by a majority, or by the chairman alone. In a case where the ICC Court had followed this procedure, it also requested the Chairman of the Arbitral Tribunal, as a matter of form, to delete certain of his comments on the two separate dissenting opinions because they appeared to involve a violation of the principle of the confidentiality of deliberations. When the award was resubmitted without the requested modifications, approval was again refused. Finally after certain modifications (in particular removal of the Chairman's comments as referred to) the award was approved.

A final question concerns the mechanics of notification of dissenting opinions. As indicated above, the first question involves any mandatory rules of the place of arbitration which may impose limitations in respect of dissenting opinions. In the absence of such limitations, the ICC Court then examines whether the majority has approved the notification of the dissenting opinion. If not, the Court will not usually instruct such notification. In one case the dissenting opinion appeared in the body of the majority award. In not approving the award (on several grounds) the Court invited the Arbitral Tribunal to detach the dissenting opinion from the actual award and make it a separate document for communication to the parties. It is a different matter when in the course of their award the majority comments on certain arguments or conclusions of the dissenting arbitrator.

As a practical matter the Court has no power to prevent an arbitrator from circulating his opinion on his own authority. Moreover, should the majority not agree to circulation, the dissent would probably be sent only to the "interested" party, which could place the other party at some time disadvantage should further proceedings be taken against the award or its enforcement.

In a 1992 case, the Arbitral Tribunal developed an "elegant formulation" which avoided many of the problems arising from dissent.

Both with regard to certain parts of this Decision and of the reasons given in the award, the Tribunal agreed only by a Majority, while one or another member of the Tribunal was of a different opinion. However, members of the Tribunal agreed to abstain from presenting any separate opinions to this award.