Answer By law4u team
In international arbitration, a three-member arbitral tribunal typically consists of a chairperson and two co-arbitrators. One of the key features of such a tribunal is the decision-making process. Given the importance of impartiality and fairness, the tribunal must follow structured procedures to ensure that decisions are made transparently and based on a majority vote. The dynamics of decision-making in a three-member tribunal often involve careful deliberation, and in cases of disagreement, the process may provide for dissenting opinions or even additional mechanisms to break deadlocks.
How Decisions Are Made in a Three-Member Arbitral Tribunal
Initial Deliberations and Consensus
Deliberation Process:
After hearing the arguments, reviewing the evidence, and conducting any necessary hearings, the members of the tribunal will deliberate on the issues of the case. The goal is to reach a consensus on the substantive matters involved in the dispute.
Role of the Chairperson:
In a three-member tribunal, the chairperson often plays a leading role in facilitating deliberations, guiding the process, and attempting to foster a consensus among the members. The chairperson’s role is critical in managing discussions and ensuring that all viewpoints are considered. However, consensus is not always possible.
Majority Decision
Voting Mechanism:
If consensus cannot be reached during deliberations, a vote is taken. The decision will generally be made by a majority vote, where the two arbitrators with the same opinion will form the majority, and the chairperson will cast the final deciding vote if required.
Equal Vote:
In cases where the tribunal members are split evenly (1-1), the chairperson may have the casting vote. This means the chairperson’s vote decides the outcome. However, in some instances, the tribunal may seek to resolve the deadlock by proposing additional deliberations or discussions before moving forward with a decision.
Dissenting Opinions
Dissenting Arbitrators:
If the decision is made by a majority vote and one of the arbitrators disagrees with the decision, they may issue a dissenting opinion. The dissenting opinion is a formal record of the reasons for disagreeing with the majority’s view and provides transparency regarding the reasoning behind the decision-making process.
Effect of Dissenting Opinions:
Dissenting opinions do not alter the decision of the tribunal but serve to highlight differing perspectives on the case. These opinions are important for legal clarity, as they may provide valuable insights into the legal reasoning behind the judgment and could be referred to in future cases or appeals.
Role of Arbitration Rules
Institutional Rules:
Most arbitration institutions, such as the ICC, LCIA, or SIAC, have established rules for decision-making in a multi-member tribunal. These rules often outline how votes are taken, how a chairperson’s casting vote works, and how disagreements are handled.
UNCITRAL Model Law:
Under the UNCITRAL Model Law on international commercial arbitration, tribunals are typically required to make decisions based on a majority vote. If the tribunal fails to reach a decision, it can propose additional procedures or even appoint an additional arbitrator in rare circumstances.
Process for Ensuring Fairness
Full Participation:
All arbitrators in a three-member tribunal must have the opportunity to express their views on the issues at hand. The process ensures that decisions are made after thorough discussion and input from all members.
Transparency in Voting:
If voting is necessary, it is essential that the process is transparent. Each arbitrator should be able to explain their reasoning for their vote, and this should be recorded in the award or decision.
Impartiality:
Each member of the tribunal must remain impartial, and their decision should be based purely on the facts and law applicable to the case. The decision-making process ensures that all parties are treated fairly and in accordance with due process.
Ensuring Consistency and Legal Certainty
Clear and Justifiable Decisions:
The majority decision is usually accompanied by a reasoned award, which explains the tribunal’s rationale for its decision. This reasoning is essential for ensuring that the parties understand the basis of the decision and can evaluate whether they have grounds to challenge the award.
Role of Legal Counsel:
Legal representatives of the parties often contribute to the deliberation process by presenting arguments and evidence. Their involvement ensures that the tribunal remains well-informed and considers all legal aspects of the dispute before making a decision.
Example
In a dispute between a multinational corporation and a supplier regarding the breach of contract, a three-member arbitral tribunal is appointed, with a chairperson and two co-arbitrators. After reviewing the evidence, the tribunal faces a disagreement between the co-arbitrators: one believes that the contract was valid, while the other argues that it was void due to a technicality. The chairperson, after extensive deliberation, casts the deciding vote in favor of the validity of the contract, forming a majority decision.
Steps Taken:
- The tribunal discusses the case in detail, with all members presenting their views.
- A vote is taken, but one co-arbitrator dissents, and the chairperson uses their casting vote to break the tie.
- The majority decision is issued, along with the dissenting opinion from the co-arbitrator.
- The award is reasoned, explaining the basis for the majority’s decision, and the dissenting opinion outlines the alternative legal reasoning.
Outcome:
The award is issued in favor of the corporation, and the dissenting opinion highlights the reasons for the co-arbitrator’s disagreement. The case is concluded, and the parties can consider enforcement or challenge the award as appropriate.
