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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

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X:\DAR\DANGEROUS DISSENTS

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