Dissent in Arbitration
Notes of an intervention in a debate on dissenting opinion
If a Layman may comment on what seems an esoteric legal debate. I suggest that ordinary commercial arbitration is not a process at law. Nor are arbitrators judges; Equally they are not delegates. The word tribunal is misleading; arbitrators form a panel or ad hoc committee.
To justify by Natural Law the duty of each member to form his own opinion while seeking to achieve a collegiate finding would perhaps take too long. (I'll try to do that another time.) Suffice to say that the duty of the empanelled members to seek common ground is well-founded in custom; remember the two arbitrators who used to refer to an umpire only if they could not find that common ground.
If the three arbitrators cannot, in all conscience, sign the award, or if someone cannot sign it without expressing reservations, then the Collegiate process has failed.
But these arbitrators are paid by the parties alone. With the most sincere respect to the Supreme Court in Jivraj v Hishwani, they are still servants of the parties if not employees. The parties are entitled to know what went wrong. Just as they have a right to the reasons for the Award, they have a right to the reasons for dissent.
The danger, we are told, is that the memorandum of dissent will be taken into account by a Court in proceedings for setting aside or for enforcement. The answer to that, I suggest, is simple. The dissenter is either wrong or right. If the dissent is wrong, the Court will discard it; no harm done.
If, on the other hand the dissenter is right, then the Court will no doubt find accordingly and harm, possibly serious harm will be averted.
It seems entirely logical, but then I'm an Engineer and no Lawyer.