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Report No. 176

2.14 Minority dissenting view of arbitrator

Under sec.31(2) of the 1996 Act, it is stated that the signatures of the majority of the members shall be sufficient "so long as the reason for any omitted signature is stated." Sec.29(1) states that, unless otherwise agreed, any decision of the arbitral tribunal with more than one member, shall be made by a majority of all its members.

This raises the question whether an arbitrator who is in a minority could avoid signing the award. It appears appropriate that section 31 9(2) may be amended providing that the dissenting member shall be entitled to submit his dissenting opinion and the same shall be treated as an annexure to the award.

If the dissenting opinion is annexed to the award, the court before whom the may be questioned, will have the benefit of the dissenting opinion as well. It appears to be settled law, at any rate in international arbitration, that a dissenting opinion is not part of the award and, if given, it remains on record only as a part of information, (see Fouchard etc. 1999 page 1403) unless the arbitration rules provide otherwise.

In ICC. arbitration, the dissenting opinion is not examined by by the International Court of Arbitration under Art. 27 of the Rules, as the court takes the dissenting opinion only a piece of information. Thus, the existing provisions appear to be sufficient and no amendment appears to be necessary.

The Arbitration and Conciliation (Amendment) Bill, 2001 Back

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