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dissenting arbitrator, the dissent was made in favour of the party that had

appointed him or her. There is perhaps nothing strange about this; in

selecting an arbitrator, the parties will naturally look for someone likely

to be sympathetic to their point of view.40 But it would have been

comforting if one or two of the dissenting opinions had gone against the

appointing party!41

For Maître Boisséson, to accept the principle of a dissenting

opinion is to diminish the independent role of the arbitrator. “In effect”,

he says,

“Certain arbitrators, so as not to lose the

confidence of the company of the state which

appointed them, will be tempted, if they have

not put their point of view successfully in the

course of the tribunal’s deliberation,

systematically to draw up a dissenting opinion

40 As stated by Judge Richard Mosk and Tom Ginsberg in “Dissenting Opinions in International Arbitration”, Liber Amicorum Bengt Broms, Finnish Branch of the International Law Association, Helsinki 1999 at p. 275: “It should not be surprising if party appointed arbitrators tend to view the facts and law in a light similar to their appointing parties. After all, the parties are careful to select arbitrators with views similar to theirs. But this does not mean that arbitrators will violate their duties of impartiality and independence.”

41 In fairness, it should of course be said that the two dissenting arbitrators whose identity was not clear from the Award may not have dissented in favour of their appointing party.

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