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opinions may well reveal what went on in the private deliberations of the

Tribunal.

There may of course be circumstances in which an arbitrator is

compelled by his or her professional conscience to dissent from the

conclusions of the majority. If so, this can be done by a “good” dissent –

short, polite and restrained. To go further, and to continue to express

arguments and opinions that were not accepted during the Tribunal’s

deliberations, would seem to serve little or no purpose, except that of self-

justification.

It is true, as stated earlier in this article, that a dissenting opinion

may point the way to a change in the law. As was said in somewhat

poetic terms, it may constitute “an appeal to the brooding spirit of the

law, to the intelligence of a future day”. But for this to happen, the dissent

would need to be on some point of legal principle; and in addition, the

dissent would need to be published as part of an award that was itself

made public.

In an article that is generally favourable to the expression of

dissenting opinions in international arbitration, the authors suggest that

such opinions may affect decisions in the future, but they add:

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X:\DAR\DANGEROUS DISSENTS

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