The Dissenting Opinion in P&ID v Nigeria and the Question of Awards of Excessive General Damages in Investor-State Arbitration

Abstract

Dissents are useful in giving additional dimension to the issues involved in a case. In arbitration, especially, a dissenting opinion has the effect of: encouraging the majority to do a more careful analysis in its reasoning; and promoting parties’ confidence in the arbitral process. More importantly, a dissenting opinion may also help in providing future tribunals and researchers alternative perspectives that may affect the reasoning of the former or be used by the latter to scrutinise the majority award and, ultimately, provide a better jurisprudence and a body of literature for the arbitration community. This paper used the dissenting opinion in P&ID v Nigeria to scrutinise the majority award in a bid to address the question of awards of excessive general damages in investor-State arbitration. Such exorbitant awards, among other things, have led to dissatisfaction against investor-State arbitration and a clamour for its reform; but some of the reform options being proposed are aimed at its complete abandonment, despite its overwhelming advantages. This paper, therefore, explored previous literature to establish the use of equity and justice-rooted principles in international law, especially in the past, and proposes their broad application today to investor-State arbitration as a means of saving the mechanism from collapse. The doctrinal approach of qualitative research methodology was adopted in this paper. This gave the basis for interrogating previous literature that deals with the role that equity and justice-rooted principles should play in international arbitration and to conclude that applying such principles would help arbitral tribunals arrive at more appropriate general damages.

Keywords: Dissenting opinion, Equity, General damages, Investor-State arbitration, Justice

DOI: 10.7176/JLPG/115-11

Publication date: November 30^th 2021