It may be that the communication of dissenting opinions
by the ICC – and by other institutions, such as the LCIA – not
only encourages arbitrators to enter a dissenting opinion but also
gives an air of respectability – or even authority – to that opinion.
If so, this is unfortunate.
Why do arbitrators dissent? Some, no doubt, do so out of
a sense of duty or loyalty to their appointing party, which weighs
more heavily than their duty to be and to remain independent and
impartial. Others, having seen the majority opinion move away
from the view that they themselves have formed, will be “unable
to resist the temptation to continue arguing” with their
colleagues. By expressing a detailed dissenting opinion, they are
in effect saying to anyone who is interested: “this is how I would
have decided the dispute, if I had been the sole arbitrator”.
But, of course, a dissenting arbitrator is not the sole
arbitrator. By putting forward a detailed dissent which continues
the argument and leads to a different conclusion or worse, by
putting forward a detailed dissent which attacks the majority
arbitrators and the way in which the arbitration was conducted,
the dissenting arbitrator risks bringing the arbitral process itself