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Those who, like myself, knew Sir Robert Jennings – and indeed

had the privilege of being taught by him – will know that this was a very

serious rebuke from a usually mild mannered lawyer. And if this is only a

“bad” - or even “justifiable” - dissent, what then is one that is “ugly” or

“reprehensible”?

Such dissents, I would suggest, are these in which the dissenting

arbitrator does not merely disagree with his or her colleagues on issues of

fact or law, or on their reasoning, but instead takes the opportunity of

issuing a dissenting opinion to attack the way in which the arbitration

itself was conducted. The dissenting arbitrator complains, unrestrainedly

and in print, that his or her views were ignored, that he or she was never

properly consulted, that the majority arbitrators were ignorant of the law

and biased from the outset – and so forth. In short, the dissenting

arbitrator complains that the proper procedures were not followed and

that the majority arbitrators have failed to behave as they should have

behaved.

This is what seems to have happened in a case which came before

the Swedish Court of Appeal. In CMF v. The Czech Republic34, the

Czech government tried to set aside an award made by a majority

34 The text of the Partial Award on Liability of 13 September 2001 and the dissenting Opinion in this case, CMF v. The Czech Republic is available at http://www.cetv-net.com/ne/articlefiles/439-cme- cv_eng.pdf.

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X:\DAR\DANGEROUS DISSENTS

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