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Practising VirtueInside International Arbitration$
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David D. Caron, Stephan W. Schill, Abby Cohen Smutny, and Epaminontas E. Triantafilou

Print publication date: 2015

Print ISBN-13: 9780198739807

Published to Oxford Scholarship Online: January 2016

DOI: 10.1093/acprof:oso/9780198739807.001.0001

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Charles Brower’s Problem with 100%— Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration

Charles Brower’s Problem with 100%— Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration

Chapter:
(p.504) 30 Charles Brower’s Problem with 100%— Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration
Source:
Practising Virtue
Author(s):

Albert Jan van den Berg

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198739807.003.0031

This chapter explores the subject of dissenting opinions, which have been appearing with increasing frequency in investment treaty arbitration. Whatever their advantages and disadvantages otherwise, dissenting opinions are significant because, when read together with the award, they offer additional insight into the tribunal’s deliberative process. The chapter adds to a prior exchange of views with Judge Brower on the appropriateness of dissenting opinions in international arbitration. It observes that such dissents are invariably filed by the party-appointed arbitrator of the party that lost the case. This fact points to the partisan character of dissents and does not promote neutrality and collegiality, while also undermining the authority of arbitral awards.

Keywords:   investment treaty arbitration, dissenting opinion, dissents, tribunals, arbitrators, arbitral awards, party-appointed arbitrators, Nightingale Article, réplique

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