When Arbitrators Stray: Ex Parte Communications - Part V - Chapter 51 - The Practice of International Litigation - 2nd Edition
Originally from Practice of International Litigation - Second Edition
When practitioners and scholars speak, in articles and seminars, about corruption in international arbitration, they are most often referring to bribery on the part of the parties in obtaining government contracts. Only rarely does the subject of wrongful conduct by arbitrators come up. When discussed, it usually refers to transgressions no more serious than potential or actual conflicts of interest and failures by arbitrators to make appropriate disclosures. It is on such issues—having primarily to do with the selection of arbitrators—that ethical rules and guidelines published by arbitral institutions focus. However, recent publicly disclosed conduct by an arbitrator in an important state-to-state arbitration involved another type of conduct—ex parte communications by an arbitrator with one of the parties in the course of the proceedings.
This was the conduct that was recently publicly revealed to have been engaged in in an arbitration proceeding between Croatia and its Balkan neighbor, Slovenia, involving a dispute over the demarcation of the border in the Adriatic Sea between the two countries. Jernej Sekolec, formerly the Secretary of the United Nations Commission on International Trade Law (UNCITRAL) and a well-known international arbitrator, was appointed as an arbitrator by the government of his native country Slovenia. Croatia also appointed an arbitrator. There were a total five arbitrators—each party selected one, and the parties agreed on three additional arbitrators of different nationalities. The arbitration was conducted, by agreement of the parties, under the auspices of the Permanent Court of Arbitration (PCA) in The Hague.