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.

Additional Metadata
Persistent URL dx.doi.org/10.1093/arbint/aiv028, hdl.handle.net/1765/105402
Journal Arbitration International : The Official Journal of the London Court of International Arbitration (LCIA)
Note An earlier version of this article appeared in David D. Caron, Stephan W. Schill, Abby Cohen Smutny, Epaminontas E. Triantafilou (eds.), Practicing Virtue: Inside International Arbitration (OUP, Oxford, 2015)
Citation
Van Den Berg, A.J. (2015). Charles Brower's problem with 100 per cent-dissenting opinions by party-appointed arbitrators in investment arbitration. Arbitration International : The Official Journal of the London Court of International Arbitration (LCIA), 31(4), 381–391. doi:10.1093/arbint/aiv028