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The second reason is a more sensitive one. Judges are appointed by

the state. They do not depend in any way on the parties who appear

before them. In an international commercial arbitration, by contrast, two

of the three members of the tribunal will usually have been appointed (or

nominated) by the parties; and it is those parties who will pay the fees and

expenses of the arbitrators. Does this create a degree of dependence?

It should not do so. The members of the arbitral tribunal, including

the party-nominated members, are not the advocates or representatives of

the parties. The modern insistence is upon the independence and

impartiality of arbitrators. They are appointed to exercise a judicial

function and they should do so, impartially and independently. Yet when

a dissenting arbitrator disagrees with the majority, and does so in terms

which are likely to find favour with the party which appointed him or her,

does not that cause some concern? Does the dissent arise from a genuine

difference of opinion or is it influenced by other, less creditable

considerations?

The ICC in Paris publishes annual statistics which show, amongst

other things, the number of awards that it sends out each year which are

accompanied by, or include dissenting opinions. In 2001, there were 24

dissenting opinions. In 22 of these, where it was possible to identify the

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X:\DAR\DANGEROUS DISSENTS

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