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restraint on this – except perhaps good taste and a sense of collegiate

responsibility.

Do such dissenting opinions serve any useful purpose, particularly

in the context of an international commercial arbitration? Or should they

in fact be strongly discouraged, as being at best unhelpful and at worst

evidence of bias, which does not fit well with a very real and necessary

concern for independence and impartiality on the part of an arbitral

tribunal.

There is no tradition of dissenting opinions in the civil law. It was

thought that a court’s decision should appear as the decision of the court

as a whole, rather than as a mathematical process by which one party

emerged as the winner, having gained more votes than his or her

adversary. Dissenting opinions have come to international commercial

arbitration as a gift of the common law. Many may rejoice at the way in

which different legal procedures and traditions are mixed together to

build what Sir Michael Kerr called “the emerging common procedural

pattern in international arbitration”.23 It is doubtful however, whether the

dissenting opinion has added much, if anything, of value to the arbitral

process.

23 Kerr, “Concord and Conflict in International Arbitration” (1997) 13 Arbitration International No.2 at p.121.

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