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Ms Alexandra Aslanyan

Junior Associate - Egorov, Puginsky Afanasiev & Partners

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Individual Opinions

I. Definition

1.

An individual (or separate) opinion is an opinion that is submitted in circumstances where an arbitrator (or a judge) wishes to express a dissenting or assenting point of view.1 An individual opinion can either relate to the decision of the panel in its entirety or to just one -or more parts of it. 

2.

Arbitrators may submit dissenting opinions when they disagree with the outcome of the case reached by the tribunal. In other cases, arbitrators may agree with the decision in general but have a different opinion on certain points (such as the legal basis for reaching a certain conclusion): in these circumstances, they may reveal these differences in a concurring (assenting) opinion.2 Concurring opinions can either be short3 or comprise a detailed4 description on points of disagreement or on points where the arbitrator wants to supplement5 the considerations of the tribunal.

3.

Individual opinions can be distinguished from simple “statements of dissent” or a “declaration” which reflects a shorter clarification addressing a limited number of points relating to the case.6

II. Related Wiki Notes

4.
  1. Dissenting Opinions
  2. Concurring (assenting) Opinions

III. Regulation of individual opinions in Arbitration Rules

5.

It is notable that most arbitration rules (including such rules as ICC, LCIA or UNCITRAL) do not contain any provisions regulating individual opinions of arbitrators.7

IV. The role of individual opinions in Investor-State Dispute Resolution

7.

Individual opinions can open new discourses around certain issues of law, as well as re-examining older ones. In this way, individual opinions create a broader reasoned framework within which the development and interpretation of international investment law can take place. For example, where an individual opinion explores new or difficult issues of law, future tribunals may consider or rely on such reasoning when rendering a decision (even if the point under discussion was not determinative - or was a dissenting opinion - in the context of the original award).8 

8.

Dissenting opinions criticizing the final decision of the arbitral tribunal may also point out downsides of the award. These can subsequently serve as a roadmap for any subsequent ad hoc committee constituted for the purpose of annulment proceedings. One of the most flagrant cases of annulment of arbitral awards with the reference to an individual opinion was Occidental Petroleum v. Ecuador.9

V. Individual opinions in practice

9.

In accordance with Article 48(4) of the ICSID Convention, individual opinions are rendered within the final award. However, nothing in the ICSID Convention or ICSID Arbitration Rules prohibits to file an individual opinion to other decisions of the tribunal such as the decisions on jurisdiction, provisional measures, or partial awards.10

10.

Individual opinions are usually drafted after the final award is produced. In this way, the dissenting or concurring opinion can be based on the unanimous reasoning advanced by the tribunal.11

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