Contrary to the common law jurisdictions, a number of civil law jurisdictions (e.g. France, Germany and Belgium) prohibit the inclusion of a dissenting opinion – an opinion by one or more judges or arbitrators who disagree with the decision reached by the majority – in arbitral awards.
Under Belgian law, an arbitral award is considered final unless the parties have expressly provided for the possibility of an appeal. With some minor exceptions, parties nevertheless have access to the Belgian Courts for a review of the legality of the award through annulment proceedings. The possible grounds for annulment of the award are listed exhaustively in the Belgian Arbitration Act. These grounds include public policy, whether the arbitral tribunal had jurisdiction and whether the tribunal was properly formed.
The Belgian Arbitration Act requires that awards:
be rendered only after deliberation by all of the arbitrators;
be in writing;
state their reasons; and
In principle, deliberations of arbitrators are confidential, and, for this reason dissenting opinions, insofar as the proceedings are subject to this Belgian Arbitration Act, cannot validly be included in the award.
Policy reasons are also cited to explain this: if arbitrators appointed by one of the litigating parties were allowed to include their dissenting opinions in awards, they would become tempted to justify themselves vis-à-vis the party that appointed them. In addition, the inclusion of a dissenting opinion could cause the majority to justify their award by making arguments against the minority opinion rather than by reference to the arguments advanced by the parties.
The parties to the dispute cannot include in their arbitration agreement an acceptance of dissenting opinions in the arbitration award. This is due to the public order nature of the Belgian Arbitration Act which provides for one exception only: parties can, by an express clause, exclude all recourse to annulment proceedings providing none of the parties to the arbitration:
has Belgian nationality;
has his/her residence in Belgium; or
in the case of corporate bodies, is incorporated in, or has a branch in Belgium.
However, under the ICC Arbitration Rules the ICC Court would not have the power to prevent an arbitrator from communicating his dissenting opinion to the parties.
It should also be noted that the presence of a dissenting opinion in a foreign award would generally not form an obstacle for enforcement of that award in Belgium.
See: Van Den Heuvel, J., “Arbitrage: Capita Selecta” in: Liber Amicorum Lucien Simont
, Bruylant, Brussels, 2002, p. 341.
See: Van Den Heuvel, J., op. cit.