Concurring Opinions

Concurring opinion (or separate opinion) is an individual opinion of an arbitrator who concurs with the disposition of an arbitral tribunal in its award, but does not assent to the reasoning contained therein.¹ In other words, in circumstances where an arbitrator agrees with other members of arbitral tribunal on the result reached but disagrees with the reasons of the majority, a concurring opinion can be issued together with the award.²

Individual Opinions

Dissenting Opinions

Unlike dissenting opinions, concurring opinions are aimed at revealing different angles of complex issues arising in the process of drafting the award but not necessarily arguing with the outcome of the decision.³ Usually, an arbitrator issuing a concurring opinion votes in favour of the majority’s decision and signs the award but draws the attention to different legal bases which lead to the same outcome of the case.⁴

Nevertheless, the history of arbitration knows such “concurring” opinions that were aimed at declaring the overall disagreement with the disposition of the award. For example, members of the Iran-United States Claims Tribunals in some cases concurred with the award “in order to form a majority so that the award can be rendered”.⁵ 

There are also some hybrid individual opinions (usually called “Dissenting and Concurring Opinion”) where the arbitrator may agree with some dispositions of the award but strongly oppose the reasoning and outcome on other issues and as a result renounce signing the award.⁶

Separate concurring opinions are playing an increasingly important role in decisions made by subsequent arbitral tribunals, whether the opinion is relied on or merely cited.⁷

Fouret, J., Gerbay, R. and Alvarez, G.M., The ICSID Convention, Regulations and Rules: A Practical Commentary, Edward Elgar Publishing, 2019.

Schreuer, C., Malintoppi, L., Reinisch, A. and Sinclair A., The ICSID Convention: A Commentary, Cambridge University Press, 2nd ed., 2009.

Breeze, R., Dissenting and Concurring Opinions in International Investment Arbitration: How the Arbitrators Frame Their Need to Differ, International Journal for the Semiotics of Law – Revue Internationale de Sémiotique Juridique 25(3), 2012. 

Breeze, R., Balancing neutrality and partiality in arbitration: discursive tensions in separate opinions, Text & Talk, Vol. 36, Issue 4, 2016.

Charlotin, D., A Data Analysis of the Iran–US Claims Tribunal’s Jurisprudence—Lessons for International Dispute-Settlement Today, Journal of International Dispute Settlement, Vol. 10, Issue 3, September 2019. 

Titi, C., Investment Arbitration and the Controverted Right of the Arbitrator to Issue a Separate or Dissenting Opinion, The Law & Practice of International Courts and Tribunals, Vol. 17, Issue 1, 2018.