Charles Brower’s problem with 100 per cent—dissenting opinions by party-appointed arbitrators in investment arbitration

Abstract

This contribution is a replique to Charles Brower and Charles Rosenberg’s article ‘The Death of the Two-Headed Nightingale: Why the Paulsson-van den Berg Presumption that Party-Appointed Arbitrators are Untrustworthy is Wrongheaded’, which appeared in Arbitration International in 2013, to the extent that it discussed dissenting opinions (the ‘Nightingale Article’). The Nightingale Article is a reaction to a study published in 2009 in which it was reported that 100 per cent of the separate opinions issued in investment arbitrations by party-appointed arbitrators have been rendered by the arbitrator appointed by the losing party. In this replique , a number of the arguments advanced in the Nightingale Article are rebutted: ‘dissenting opinions are a significant feature of international dispute settlement’; ‘[t]his figure alone [22 per cent of the decisions and awards have a dissenting opinion by a party-appointed arbitrator] serves to minimize any concerns regarding dissenting opinions in investment arbitration’; ‘concerns about neutrality are unwarranted’; ‘offers a unique tool to produce a better award’; ‘the development of investment law’; and ‘the authority of the award’. It is concluded that none of them provide a satisfactory answer to the fact that 100 per cent of the separate opinions of party-appointed investment arbitrators have been issued by the arbitrator appointed by the party that has lost the case.