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In a previous talk on this subject, I suggested – borrowing from the

“Spaghetti Western” which starred Clint Eastwood – that dissenting

opinions in international commercial arbitration could be classified in

three distinct groups: “the good, the bad and the ugly”. Later, in carrying

out research for my task, I found that an American judge had come to a

somewhat similar conclusion. He said: “Dissents, like homicide, fall into

three categories: excusable, justifiable and reprehensible.”24

The “good” or “excusable” dissent is one that is short, polite and

above all restrained, so that the dissenter says: “It is with regret that I

must dissent from the views of my learned colleagues” - followed

perhaps by a few short, sharp sentences. Or there may be a partial dissent

(or dissents) woven neatly into the fabric of the judgment or award, so

that it is said (for example) that Arbitrator “A” disagrees with his or her

colleagues on this issue or set of issues and Arbitrator “B” disagrees on

some other issue or issues but nevertheless all the members of the tribunal

find themselves able to agree upon the final decision. In the process, one

or all of the members of the tribunal may have had to moderate his or her

views, in deference to the other members of the tribunal - but this is the

essence of a collegiate decision.

24

Fuld op. cit. at p. 928.

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