Abstract:Unlike the international commercial arbitration system, which is collectively silent on dissenting opinions, the international investment arbitration regime centered on the Washington Convention adopted rules on dissenting opinions from the very beginning. This original adoption was mainly based on the following a priori judgment: as an expression of freedom of speech, dissenting opinions can prompt arbitrators holding majority opinions to adjudicate cases in a more responsible manner, which in turn is conducive to the production of high-quality awards, and helps to enhance the parties' trust in the arbitration process and to promote the development of international investment law. However, in practice, almost all dissenting opinions come from arbitrators appointed by the losing party. Years of practice in international investment arbitration have not confirmed the a priori judgment based on which the rules on dissenting opinions were introduced into international investment arbitration. The moral hazard of the unilateral appointment mechanism is believed to be the main cause of this phenomenon. However, the abolition of the unilateral appointment mechanism would not only fail to fully eradicate the bias of arbitrators, but also undermine the legitimacy of arbitration, and lead to the increasing bureaucratization of ICSID institutions. Abolishing the rules on dissenting opinions would be too extreme and would require a global consensus on the revision of a series of important international legal instruments, such as the Washington Convention, which would be difficult to achieve. To alleviate the practical dilemma of the rules on dissenting opinions in international investment arbitration, it is firstly necessary to strengthen the sense of responsibility of arbitrators, so as to make them prudent in expressing dissenting opinions. Secondly, it is necessary to recognize arbitral awards made by the presiding arbitrator alone, so that when the two co-arbitrators have a significant disagreement on the case, the presiding arbitrator is allowed to make the decision independently according to his/her own opinion, and is not compelled to “take sides”. Thirdly, the sole arbitrator should be widely used in cases involving small amount of money or with simple background.

Key Words: International Investor-State Arbitration; Dissenting Opinion; Unilaterally Appointed Arbitrator; Arbitrator Accountability; Appointment Mechanism

Author: Fu Panfeng, an associate research fellow at CASS Institute of International Law;

Source: 3 (2024) Chinese Review of International Law.