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occasionally perhaps to profit by it. Even so, not all courts permit dissent.

The European Court of Justice is a notable example of a court in which

the secrecy of the deliberations is maintained and no dissent is allowed.

This rule is defended on the grounds that it builds up the authority of the

Court.35 As an American judge said, more than a hundred years ago,

“the only purpose which an elaborate dissent

can accomplish, if any, is to weaken the effect

of the opinion of the majority, and thus

engender want of confidence in the conclusion

of courts of last resort.”36

Since in most cases there is no appeal from the award of an

international arbitral tribunal, that tribunal is in effect a court of last

resort. Even the famous U.S. judge Oliver Wendell Holmes, who was

often described as “the great dissenter”, said that he thought it “useless

and undesirable, as a rule, to express dissent”.37

35 See, for instance, the comment by Alder “Dissents in Courts of Last Resort: Tragic Choices?” Oxford Journal of Legal Studies, Vol. 20, Issue 2, pp. 221 to 246: “dissents are not permitted in the European Court of Justice, the deliberations of which are subject to a strong requirement of secrecy and all must sign the opinion of the court. This has been defended on the ground of the need to build up the court’s authority by “presenting a united front and as a defence against political pressure”. Alder suggests that such a role is “anti-democratic” (loc. cit. at footnote 19).

36 37

Per White J. in Pollock v. Farmers Loan and Trust Co. 157 US 429 at 608 (1895). In Northern Securities Company v. United States 193 US 197 at 400 (1904).

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