Published 9 August 2018
An international arbitral tribunal typically consists of three members. Each of them has an equal vote, with the majority ruling. The ultimate disposition of the case, therefore, is usually expected to represent the common will of at least two tribunal members.
But what if there is no commonality of "will"? What if each of the arbitrators espouse mutually irreconcilable views about how the case should be decided? What if the "minority" (dissenting) voice seems to align itself with one of the "majority"? What if a "concurring" opinion (written by one of the majority members) seems at odds with the final dispositif?
The phenomenon of the "fractured" tribunal is mercifully rare, but real nevertheless. This article explores the way the issue has arisen, and the way in which it has been resolved in some of the leading international cases. As noted below, international tribunals have striven to uphold arbitral awards, even in cases where the reasoning is "atomized" as between the individual members. Primacy thus tends to be given to the ultimate vote of a tribunal (as expressed in a dispositif) rather than what has gone before in the individual members' stated reasons. Nevertheless, the potential for mischief persists, particularly when an award is badly drafted or where there is dysfunctionality in the panel deliberations.
The discussion below will examine the leading ICJ, ICSID, UNCITRAL and ad hoc decisions on this issue, including the well-known cases of Guinea-Bissau, Rann of Kutsch as well as more recent ICSID annulment case Alapli v. Turkey. We will start, however, with the less celebrated ICJ advisory opinion in Yakimetz, which, in the author's submission, had a significant influence on how this issue is analyzed.