PDRC participated in the Office for Alternative Dispute Resolution (OADR) conference for alternative dispute resolution (ADR) stakeholders’ conference on March 22, 2018 in Hotel Pontefino, Batangas City. The conference is a continuing program of the OADR, consistent with its mandate to promote, develop and expand the use of ADR in the private and public sectors.
The participants included members of the Integrated Bar of the Philippines Batangas City Chapter, Batangas City officials, and local barangay officials. Atty. Salvador S. Panga, Jr., PDRC Vice-President for External Affairs, talked on PDRC and Arbitration, while Francisco D. Pabilla, Jr., PDRC Assistant Secretary General, discussed mediation.
Writing dissents
PART 1
Recently, a fellow arbitrator begged off from his promise to contribute an article to this publication because he was busy writing a dissent in a case that was submitted for decision. He did not expect to take a contrarian position, he said, but there were “lots of differences” between him and the majority in the analysis and evaluation of the case.
Having been in a similar situation before, I advised him to write his article instead of wasting his time on his dissent. I had written two dissents, and I felt I knew a little about it to give him “sage” advice. Since then, I have thought about the subject and decided to shed some light into it.
Dissent in arbitration
A dissent in arbitration is an opinion by one or more arbitrators who disagree with the decision reached by the majority in the final award. The disagreement must be both in the reasoning and result of the arbitration.
Where the arbitrator agrees with the result but disagrees with the reasoning, he may write a concurring opinion. A dissent and a concurring opinion are both separate opinions, but a separate opinion may be both concurring and dissenting.
In case there are three separate opinions without any concurrence on the result, some statutes and institutional rules provide that the presiding arbitrator shall render the award. For instance, Article 42 of the PDRC Arbitration Rules provides that “If there is no majority, unless the parties agree otherwise, the award may be made by the Chair of the arbitral tribunal alone.” [Sec. (1)]
However, where the arbitration law requires a valid award to be made by a majority of its members, an award can be made only if the presiding arbitrator and one of the co-arbitrators compromise their initial views and agree upon a common position [Born, International Arbitration: Law & Practice 298 (2016, 2d ed.)].
Where the plurality of opinions results in a fractured award, this may present problems in enforcement. In that case, the parties may move to have the award interpreted by the tribunal. If the period for interpreting the award has lapsed and the award has been submitted to the courts for enforcement, Philippine courts may adopt the so-called “Marks rule” of the United States Supr eme Cour t . I n Marks v. United States, 430 U.S. 188, 97 S. Ct. 990 (1977), it held that the opinion of the justices concurring in the judgment on the narrowest ground—the legal standard on which the majority of the Supreme Court would agree—is considered the Court’s ruling.
The value of dissents
Most national laws on arbitration are silent on separate opinions (Born, supra). Republic Act 897 (1953), which applies to domestic arbitration; Executive Order 1008 (1985), which governs construction arbitration; as well as Republic Act 9285 (2004), The Alternative Dispute Resolution Act of 2004, which adopted the 1985 UNCITRAL Model law, do not provide for dissents or separate opinions.
During the drafting of UNCITRAL Model law, proposals were made to permit dissenting opinions, but no sufficient need was seen for it and the proposals were eventually dropped (Id.). Nonetheless, institutional rules sometimes allow dissents or separate opinions.
For instance, the Rules of Construction Arbitration of the Philippine Construction Industr y Arbitration Commission states that, “A dissent from the decision of the majority or a portion thereof shall be in writing, specif ying the portion/s dissented from, with a statement of the reason/s thereof, and signed by the dissenting member.” (Rule 16, Sec. 16. 2)
Even where the law is silent, a dissent is impliedly allowed by statutor y language providing that awards be made by a majority of the arbitrators. Where there is no unanimity in the final award, there must be a dissenting minority. In a tribunal composed of three or more arbitrators, a dissent or separate opinion is always a possibility, especially where the dispute involves complex issues or substantial sums.
As Born points out (at 299), a dissent or separate opinion is only an “opinion,” not an “award.” It reflects only the views of the arbitrator writing it and is not an act of the tribunal. It is not a part of the award and is not subject to annulment or recognition. Hence, unless the institutional rules or the majority of the tribunal permits it, the dissent cannot be attached to the final award or issued separately by the author (at 298).
Still, a dissent serves a useful purpose in arbitration, even if the proceedings are considered confidential (ADR Act, Sec. 23) and the dissent is not published. Of ten, the dissent is addressed to the majority of the tribunal to give them an opportunity to revisit their position before the final award is issued. For this to happen, the dissent must be issued early, with sufficient notice to the presiding arbitrator to give the tribunal time to revise the draft award, if needed, before it is finalized.
Since arbitral awards are generally not published, there is no body of precedents that can guide future tribunals in deciding similar or related disputes. Dissents and separate opinions, however, enhance knowledge through an exchange of information and opinions. If the dissent is well written, it may even call for improvement of techniques and rulings so that better arbitrations may result.
Most importantly, a dissent preserves the integrity of the arbitration process and guarantees that the tribunal reaches its decision after a careful deliberation, of ten after a vigorous debate of the issues. It recognizes the right of individual arbitrators to express their views freely, without fear of being overwhelmed by the majority.