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.

The Commission on International Arbitration is one of the ICC's Commissions charged with preparing policy on general and technical issues concerning world trade and investment. Chaired by Professor Ottoarndt Glossner, it is composed of international specialists appointed by ICC National Committees and Councils throughout the world. Several of the Commission's working parties have been concentrating their efforts on the following subject matters of concern in international commercial arbitration: dissenting opinions and interim and partial awards, the ICC standard arbitration clause, multiparty arbitration, Terms of Reference, and the Rules of the ICC's International Centre for Technical Expertise.

Introduction

1. The Working Party, established by the Commission at its meeting on 25 October 1985, is composed of Mr J. Martin H. Hunter (England) (Chairman), Mr Bernd Lindemeyer (Fed. Rep. of Germany) (Rapporteur), Mr Bengt Broms (Finland), Mr John Cochran (USA), Mr Yves Derains (France), Mr Francis P. Donovan (Australia), Mr D. Den Hertog (Netherlands), Mr Atef El Khoury (Lebanon), Mr Paul-A. Gélinas (Canada), Mr Svetozar Hanak (Czechoslovakia), Mr Lars A.E. Hjerner (Sweden), Mr Sigvard Jarvin (Sweden), Mr Renato Roncaglia (Italy), Mr Tadeusz Szurski (Poland), Mr Stephen R. Bond (Secretary of the Commission) and Mr Guillermo Aguilar Alvarez (ICC HQ) (Assistant Secretary).

2. The first Interim Report of the Working Party, dated 1 October 1986, was discussed by the Commission at its meeting in Paris on 23 October 1986. The guidance given by the Commission to the Working Party for the next stage of its work was as follows:

It was not considered appropriate in the short or medium term for the ICC to promote the harmonisation of national legal systems and practices in connection with dissenting opinions, or to take an initiative in the international sphere to promote the development of any particular practice. At this stage, the Commission should confine itself to consideration of the specific problems that arise in relation to ICC arbitration.

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 minimise the role of dissenting opinions, but the prevailing view was that the ICC should neither encourage nor discourage the giving of such opinions.

(3) The Commission would focus on regulation of the practices of the Court of Arbitration and the Secretariat. It was agreed that it is not necessary or desirable to introduce any new article relating to dissenting opinions into the ICC Rules of Arbitration. It was considered that the existing problems currently facing the Court of Arbitration in relation to dissenting opinions could be best handled by the creation of guidelines for the Court of Arbitration and the Secretariat; it may be desirable to introduce new Internal Rules in due course, but without urgency.

(4) The guidelines should include provisions relating to the communication of dissenting opinions to the Court of Arbitration; time limits; the opportunity for the majority arbitrators to see the dissenting opinion before the draft award is finalised; and notification of dissenting opinions to the parties.

(5) The Working Party was requested to proceed to the next stage of its work on the basis set out above.

3. The Second Report of the Working Party, dated 27 January 1987 had been circulated to National Committees. Written replies had been received from Finland, France, Germany, Luxembourg and Mexico, as well as a number of responses from individual delegates to the Commission, before it was discussed at the meeting of the Commission in Paris on 2 April 1987. [Page33:]

4. All speakers at the meeting of the Commission supported in principle the essential features of the Second Report, as did all the written replies from National Committees other than France. In its written submission the French National Committee expressed its strong disagreement with the conclusions of the Second Report; recommended that consideration should be given to changing the ICC Rules to prohibit the giving of dissenting opinions (or at least having them declared as being outside the ICC arbitration system); and requested that a member of the French National Committee should be invited to join the Working Party.

5. According to the minority opinion it is wrong to introduce into international arbitration concepts which have developed within certain national legal systems as regards proceedings in court. In the judicial system, dissenting opinions play a role for the appellate courts in the formation of a jurisprudence. However, the situation is not the same with an arbitral award, which as a matter of principle cannot be reviewed on the merits. The main disadvantages of permitting dissenting opinions are :

(a) they 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. Each arbitrator can remain on his position and express it in a separate note;

(c) a dissenting opinion may introduce a debate on the merits of the case when it comes before the Court of Arbitration. There is a risk of further delays before an award is approved; and the Court may tend to become an appellate body which is contrary to its role under the Rules.

6. The Commission discussed the views expressed by the French National Committee. Whilst recognising the force of the arguments put forward in its written submission, the prevailing view of a large majority (confirming the decision of the Commission at its previous meeting) was in favour of the opposite opinion, to the effect that it is neither practicable nor desirable to attempt to suppress dissenting opinions; and that, accordingly, it is better to provide practice guidelines for the Court of Arbitration and the Secretariat as to how they should be treated. It was, however, agreed that a member of the French National Committee should be invited to join the Working Party.

7. The Second Report was approved in principle by the Commission, and the Working Party was requested to submit a Third Report, based on the Second Report, but taking account of certain comments on detailed aspects raised in the written replies and by speakers during the meeting of the Commission on 27 October 1987, and this Fourth Report incorporates certain further alterations which were agreed at that meeting.

Discussion

8. As in previous reports, 'dissenting' and 'separate' (or 'concurring') opinions are considered together, since there appears to be no distinction between them in principle as regards their treatment under the rules or practice of the Court of Arbitration.

Scrutiny of dissenting opinions

9. The first question relates to the scrutiny of dissenting opinions by the Court of Arbitration. Should dissenting opinions be considered at all? If so, with what objective? As recorded in the First Report (paragraphs 9 and 10), the present practice is that, where a dissenting opinion has been submitted by the time that the award itself is scrutinised, the Court does look at the dissenting opinion during the process of scrutiny of the award. However, the Court does not approve or disapprove of dissenting opinions, or express any views as to their substance. Ultimately, the dissenting opinion is simply kept in the file of a case. However, the Court of Arbitration sometimes takes the opportunity to draw the attention of the majority arbitrators to any points raised in the dissenting opinion which may indicate a weakness of the reasoning in the award. There have been a very few occasions over the past few years on which majority awards have been amended as a result of this process.

10. Under the ICC Rules, there is no apparent obligation on the Court of Arbitration to review dissenting opinions at all. Article 21 states:

'Scrutiny of award by the Court

Before signing an award, whether partial or definitive, the arbitrator shall submit it in draft form to the Court. The Court may lay down modifications as to the form of the award and, without affecting the arbitrator's liberty of decision, may also draw his attention to points of substance. No award shall be signed until it has been approved by the Court as to its form.'

A small number of members of the Commission present at the meeting on 23 October 1986 regarded a dissenting opinion as being part of the award. If this is correct, then there would be an obligation under the ICC Rules for the Court to scrutinise it as such. However, the majority view [Page34:]-which seems logical-is that the 'award' is comprised of the dispositive section and the reasons given by the majority arbitrators. Certainly the presence of any dissenting opinion is not necessary for the purposes of enforcement of the dispositive part of the award.

11. The only specific reference to the Court of Arbitration in relation to dissenting opinions appears in Article 22 of the Internal Rules, which states as follows:

'When it scrutinises draft arbitral awards in accordance with Article 21 of the ICC Rules of Arbitration, the Court of Arbitration 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 .'

12. In general, this provision has led the Court to consider that, in case of discrepancy, the arbitrators are free to interpret the law of the place of arbitration with regard to the communication of dissenting opinions. Accordingly, where the arbitrators (unanimously or by majority) consider such communication inadmissible under the law of the place of arbitration, the Court refrains from communicating the dissenting opinion. It has been observed that dissenting opinions are traditionally discouraged in France, and some commentators consider that communication of a dissenting opinion may amount to disclosure of the deliberations of the tribunal and thus imperil the award. The Swiss Concordat has been understood not to permit communication of a dissenting opinion to the parties unless the parties or the majority arbitrators agree that it should be communicated (see Commentaire du Concordat Suisse sur l'Arbitrage, Jolidon, 1984, p.481).

In countries having no such restrictions, particularly the 'Common Law' countries, the Court communicates dissenting opinions to the parties when notifying the award. (The Working Party is not aware of any instance in which the arbitrators requested that a dissenting opinion not be communicated in countries where such opinions are clearly admitted.)

13. It seems sensible and logical for the Court of Arbitration to look at a dissenting opinion at the same time as it scrutinises the award of the majority arbitrators, with the primary objective of determining whether or not there are any 'points of substance' (the phrase used in Article 21 of the ICC Rules) that should be drawn to the attention of the majority. If the dissenting opinion discloses any weakness in the reasoning of the award, then it must surely be advantageous for the majority arbitrators to be aware of the doubts held by the Court of

Arbitration, and be given an opportunity to reconsider their position. Accordingly, the Working Party recommends that the Court of Arbitration should continue its current practice of looking at dissenting opinions, where they are available at the time of scrutiny of the majority award itself.

14. The Working Party does not consider it to be either required by the Rules (assuming that the majority view in the Commission that a dissenting opinion is not 'part of the award' is correct), or desirable in practice, for the Court of Arbitration to comment on the substance of the dissenting opinion itself, or to enter into correspondence with the dissenting arbitrator in relation to the merits of the position taken by that arbitrator.

Time limits

15. The next question is whether or not a time limit should be introduced in relation to the submission of dissenting opinions. It is clear that any consideration of a dissenting opinion can only be of any real value if it is carried out at the same time as the scrutiny of the award itself under Article 21 of the ICC Rules. It is equally clear that it would be unreasonable, and unfair, for scrutiny of the award to be delayed where the dissenting arbitrator informs the Court of Arbitration that he proposes to submit a dissenting opinion, but is dilatory in doing so. The best solution is that the Court of Arbitration should receive any dissenting opinion at the same time as it receives the majority award. The Working Party considers that it should be the duty of the Chairman of the tribunal to fix appropriate time limits for the internal working of the tribunal to ensure that this is done. Equally, it should also be the duty of the Chairman to ensure that transmission of the majority award to the Secretariat of the Court of Arbitration should not be unduly delayed by a dilatory dissenting arbitrator. Occasionally, the dissenting arbitrator will only receive the final version of the majority award at the same time as it is submitted to the Court of Arbitration; in such cases it is not practicable for him to submit any dissenting opinion simultaneously, and it is clearly reasonable for a dissenting arbitrator to be given a suitable period of time to prepare his opinion in written form if he wishes to submit one.

16. The Working Party is of the opinion that the Court of Arbitration should look at a dissenting opinion only if it is submitted in due time for the majority award to be scrutinised on the date that it would normally go to the Court. Further, that the Secretariat, on receipt of a majority award (if it is not accompanied by a dissenting opinion as envisaged by paragraph 15 above), should immediately communicate with the dissenting arbitrator to inform him that any dissenting opinion will not be considered by the Court of Arbitration unless it is received [Page35:] before the majority award comes to the Court for scrutiny in the normal course of events; and that, if he wishes to have further information as to timing, he should communicate with the Secretariat immediately. The Working Party considers that a method of informing ICC arbitrators of these practices should be found so that they are aware of them at the beginning of the arbitration; this would make it less likely that the communication from the Secretariat mentioned above would be seen as an encouragement to submit a dissenting opinion.

17. It may be desirable that regulation of specific time limits should eventually be embodied in a rule which can be seen by practitioners. However, there is no immediate urgency for this to be undertaken and, in any event, it may be useful to have a period during which the proposed practice is in an experimental stage, so as to determine whether or not it works well. Accordingly, the Working Party considers that its proposals could be operated as practice guidelines for the Secretariat and for the Court of Arbitration pending the forthcoming general revision of the ICC Rules, which is not expected to come into effect before 1990. The Working Party envisages that regulation of time limits for consideration of dissenting opinions in the context of the scrutiny of awards under Article 21 of the ICC Rules would be implemented by a new Internal Rule.

Should the majority arbitrators see any dissenting opinion before finalizing the award?

18. The next question is whether or not the majority arbitrators should have an opportunity to see the opinion of the dissenting arbitrator before finalising the majority award. It may not be considered essential, since the dissenting arbitrator will presumably have made his views clear-with his reasons-during the deliberations of the tribunal. However, it may nonetheless be desirable in that, when he sits down to formulate his reasoning in writing, the dissenting arbitrator may highlight important substantive points which have not been fully appreciated by the majority arbitrators. From a practical point of view, therefore, it seems sensible that majority arbitrators should see what the dissenting arbitrator has written before they finalise the award, and their reasons for it. Again, it should be the duty of the Chairman to establish an appropriate procedure for the internal working of the tribunal. One possible option is that the Chairman may be able to arrange for the dissenting view to be set out in the body of the award, preferably on an anonymous basis; this may sometimes avoid the submission of a separate dissenting opinion by the dissenting arbitrator.

19. ICC arbitration is unique in its system of scrutiny of awards. The fact that the award must necessarily stay in draft form for some period of time (under the specific wording of Article 21) gives the opportunity for majority arbitrators to see the opinion of the dissenting arbitrator before the majority award is converted from draft to final form. Normally this would be done as a matter of course as part of the Chairman's responsibility. But, unless it is clear that it has already been done, the Working Party considers that the Secretariat should send a copy of the dissenting opinion to each of the majority arbitrators as soon as it is received in Paris. This would mean that the majority arbitrators would have it in their possession before scrutiny of their award by the Court. This would enable the majority to reconsider their award prior to its submission to the Court.

Notification of dissenting opinions to the parties

20. The last questions relate to notification of dissenting opinions to the parties. Should the Court of Arbitration continue its present practice of refusing to notify dissenting opinions to the parties in the case of certain countries? Should the Court of Arbitration attempt to dissuade individual minority arbitrators from sending dissenting opinions directly to the parties themselves? In principle, it seems sensible that the parties should see a dissenting opinion written by a minority arbitrator. It is sometimes said that this would tend to encourage parties to challenge awards more frequently. However, the Working Party is not satisfied that this objection is well-founded.

21. Most dissenting opinions are based upon a different view of legal issues, or a different evaluation of factual or expert evidence submitted by the parties during the course of the arbitration. In nearly all jurisdictions, there is no appeal against an award on its merits. The Working Party knows of no legal system under which the courts will 'second guess' the tribunal as to the credibility of witnesses who have been seen in person by the tribunal but not by the appellate court. An appeal on points of law to the court is retained in England in certain limited circumstances, but these do not apply in relation to international arbitrations held under the ICC Rules. In general, awards may be challenged only for lack of jurisdiction or lack of due process. However, in the cases in which these questions are raised in a dissenting opinion, it may be thought proper-indeed desirable-that the parties should in fact be made aware of the contents of the dissenting opinion. The Working Party is sure that the ICC would not wish to adopt a policy which could have the effect of deliberately suppressing from the parties any genuine cause for concern on jurisdiction questions, or on the requirements of procedural due process. It would indeed be a very dangerous position for the ICC to adopt. [Page36:]

22. For these reasons, the Working Party considers it desirable that, in general, dissenting opinions should be notified to the parties by the Court of Arbitration. Relevant information should not be concealed from the parties. The Working Party recognises that further research will be required to ensure that the validity of a majority award will not be affected in particular countries by the communication of a dissenting opinion. The sample of countries examined so far by the Working Party (see Appendix 1) does not indicate any country in which the validity of the award would be imperilled by communication of a dissenting opinion, although it is evident that the practice is discouraged in a number of countries; and Switzerland was not included in the survey.

23. On the second aspect of the question of notification of dissenting opinions, it was recorded in the First Report that the ICC has no power to prevent a dissenting arbitrator from communicating his opinion to the parties. In the absence of such power it seems undesirable for the ICC to try to impose a policy on arbitrators. If the recommendation of the Working Party that dissenting opinions will normally be notified to the parties by the Court of Arbitration is adopted, this question will not normally arise. However, it will be relevant in the case of countries where communication of a dissenting opinion may imperil the validity of the award. It seems that, in such instances, the solution will be for the ICC to continue its present practice where the notification of a dissenting opinion is prohibited under a certain law.

Conclusions 1

24. The Court of Arbitration should continue its present practice of looking at dissenting opinions, when they are available, at the same time as scrutinising awards under Article 21 of the ICC Rules.

25. It should be the duty of the chairman to establish a procedure for the internal working of the tribunal, designed to ensure that he is able to send any dissenting opinion to the Secretariat at the same time as sending the draft majority award in accordance with Article 21 of the Rules. A convenient method of providing guidance to chairmen on this point should be devised, pending publication of the proposed 'handbook' for ICC arbitrators.

26. Where the Court of Arbitration receives a majority award of two arbitrators in draft form (without an attached dissenting opinion), the Secretariat should immediately inform the dissenting arbitrator that any dissenting opinion will only be communicated to the members of the Court of Arbitration if it is received before the date on which the award will be scrutinised in the normal course of events, and inviting him to contact the Secretariat if he wishes to have further information as to timing.

27. A dissenting opinion should only be communicated to the Court of Arbitration if it is received by the Secretariat before the date on which the award comes to the Court for scrutiny in the normal course of events; exceptionally, scrutiny of the award should be postponed to the next session of the Court if there is insufficient time to give adequate consideration to a dissenting opinion, or if the dissenting arbitrator has not had a reasonable time to submit any dissenting opinion. A dissenting opinion received after the award has been scrutinised by the Court should simply be notified to the parties (subject to paragraphs 29 and 30 below) and placed on the file.

28. On receipt of a dissenting opinion, the Secretariat should send a copy to each of the majority arbitrators if it appears that they have not already received it.

29. Dissenting opinions should normally be sent to the parties by the Court of Arbitration at the same time as notification of the award under Article 23 of the ICC Rules; exceptionally, a dissenting opinion should not be notified where the Court of Arbitration concludes that such communication is prohibited by law, or where the validity of the award may be imperilled, in the country in which the arbitration took place or in any country in which (so far as the Court can reasonably foresee) recognition or enforcement of the award is likely to be sought.

30. The Court of Arbitration may draw the attention of dissenting arbitrators to any circumstances which may prohibit the communication of a dissenting opinion to the parties, or may imperil the validity of the majority award.

31. The above recommendations should be implemented in the first instance by 'practice guidelines' for the Secretariat and the Court of Arbitration. These practice guidelines should in due course be incorporated into the proposed 'handbook' for ICC arbitrators. The handbook should emphasise that the contents of a dissenting opinion must not breach the rule of secrecy in relation to the deliberations of the tribunal. New Internal Rules should be introduced to cover the position at the next general revision of the ICC Rules.

1
These conclusions are those of the ICC Commission on International Arbitration. They do not amend or supersede the ICC Rules of Arbitration or bind the ICC Court or its Secretariat.