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discussions that were held, as they moved towards the writing of their

award.

This highlights one of the problems caused by the dissenting

opinion.

Once

an

arbitrator

has

expressed

such

an

opinion,

the

secrecy

of the tribunal’s deliberations has been breached and the curtain has been

lifted, if only to give a brief but tantalising glimpse of dissension within

the tribunal.

It would be difficult, if not impossible, for arbitrators to have a

frank and open exchange of views, to advance ideas and proposals, to

change their mind and then perhaps to change it back again, if what they

had said and what they had not said, what they had thought and what they

had not thought, was to become known to the parties – particularly in a

situation in which two of the three members of the tribunal are chosen by

the parties themselves.

This in essence is the justification for keeping secret the

deliberations of the tribunal. But does this secrecy need to be maintained

once the award has been issued? I would suggest that it should be; but can

it be, if dissenting opinions are permitted? Experience suggests that such

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X:\DAR\DANGEROUS DISSENTS

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