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By contrast with the courts of law, the authority of an arbitral

tribunal rests on that tribunal alone; and it is a tribunal, it must be

remembered, which is brought together only to determine a particular

dispute, which may never have met before and which may never meet

again. This is a fragile base on which to build a decision on a claim that

may be worth millions of dollars. A dissenting opinion may be sufficient

to over-turn this fragile base and with it, an award which, for better of for

worse, the parties have undertaken to honour. In other words, a dissenting

opinion may lay an award open to attack. Indeed in a recent case38

relating to an arbitration award made by three English arbitrators, one of

whom gave a dissenting opinion, the Court of Appeal said:

“The difference of view between the

experienced arbitrators in this case provides, of

itself, ground for contending that the decision of

the majority is “at least open to serious


38 39 “The Northern Pioneer” (2002), Court of Appeal, Civil Division. Per Phillips M-R at para. 64. Under English Law, parties may waive their right of appeal on a point of law either expressly or by implication (under rules such as those of the ICC or the LCIA which contain such a waiver). If the parties have kept open the right of appeal, the applicant must still apply to the English court for leave to appeal, which will not be given unless it appears that the Tribunal’s decision on the point of law is “obviously wrong” or if the question is one of general public importance and the decision is “at least open to serious doubt”. English Arbitration Act, 1996, ss.69(1) and 82(1).

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