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
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, p. 456.
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
Schreuer, C., Malintoppi, L., Reinisch, A. and Sinclair A., The ICSID Convention: A Commentary, Cambridge University Press, 2nd ed., 2009, pp. 830-834, para. 96.
Víctor Pey Casado and President Allende Foundation v. Republic of Chile, ICSID Case No. ARB/98/2, Concurring Opinion of Nicolas Angelet, para. 1; Jin Hae Seo v. Republic of Korea, HKIAC Case No. 18117, Concurring Opinion of Dr. Benny Lo, para. 3.
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
Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Concurring and Dissenting Opinion of Gary Born, 18 July 2008 paras. 1-2; Impregilo S.p.A. v. Argentina (I), ICSID Case No. ARB /07/17, Concurring and Dissenting Opinion of Brigitte Stern, 21 June 2011, paras. 1-2; PACC Offshore Services Holdings Ltd v. United Mexican States, ICSID Case No. UNCT/18/5, Concurring and Dissenting Opinion of Professor W. Michael Reisman.
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.
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