Dissenting opinions in arbitral awards in Kenya: potential benefits and challenges
Dissenting opinions are a common feature of multipartite common law and International tribunals. More often than not they are expressions of disagreement by members of the tribunal and they seek to convince the majority of the existence of a different logicality. Although they lack the force of law, dissenting opinions have played a role in the development of law by informing future generations, furthermore, dissenting opinions allow judges to exercise; intellectual integrity and judicial independence. The benefits of dissenting opinions in superior state courts and international adjudicatory bodies are obvious. What is much less obvious are the benefits of dissenting opinions in arbitration, especially domestic multipartite arbitration. This research paper proposes that the process of arbitration may actually benefit from dissenting opinions rendered in multipartite tribunals. Furthermore, this research explores the challenges posed by dissenting opinions in arbitration. This research will seek to look at the various statutes and instruments in Kenya and how dissenting opinions in arbitral awards can be rendered within that framework. It will also move a step further and look into how other jurisdictions and international arbitration institutions response to dissenting opinions in arbitral awards. The research methodology applied in this paper is the review of literature dealing with dissenting opinions and awards. It will also employ the use of historical analysis and comparative analysis. As will be revealed by the paper embracing dissenting opinions in multipartite arbitration does offer potential benefits such as improved awards, maintenance of intellectual integrity and they have proved beneficial to parties challenging awards and appellate courts. The challenges posed by dissenting opinions in arbitral awards include an increase in the likelihood that the losing party will challenge the award, they also risk violating the secrecy of violations and there is the risk that party appointed arbitrators will misuse them to appease their appointing parties. The paper will recommend that these risks can be offset by a comprehensive code of ethics and that dissenting opinion should be expressly provided for.