Alarming developments in a recent arbitration between Croatia and Slovenia catapulted ethical issues to the center of debates over the functioning of international dispute settlement. On July 22, 2015, a Croatian newspaper published transcripts and audio files of ex parte communications between the arbitrator Slovenia appointed and Slovenia's agent in the case. In these discussions, the arbitrator disclosed the Tribunal's preliminary conclusions (which allegedly favored Slovenia) and discussed ways to influence the other arbitrators on the panel. Following the revelation of these conversations, Slovenia's Prime Minister demanded and received the resignations of both individuals and stated that the Slovenian Government had not known of the pair's exchanges. By this time, however, the arbitral process had been irreparably harmed. Days later, the arbitrator appointed by Croatia resigned. Croatia asked for a suspension of the proceedings; shortly thereafter, Croatia purported to terminate the agreement to arbitrate, claiming that the communications constituted a material breach of the agreement. A reconstituted tribunal nonetheless proceeded with a de novo consideration of all aspects of the case. Although Croatia refused to participate in the proceedings, in June 2017 the tribunal issued a unanimous final award, which Croatia has refused to recognize.
In most other circumstances, ethical issues that arise in international dispute settlement are considerably more nuanced. Yet even where all actors respect the rules, a hint of impropriety can cast a pall over the proceedings. In two separate recent cases under the UN Convention on the Law of the Sea dispute mechanisms, two different individuals acting as the appointing authority each decided to appoint himself as arbitrator, including in one case as presiding arbitrator. Though these decisions do not violate any applicable provisions on appointments, it is potentially troubling that an appointing authority would select himself: What if an arbitrator challenge arises that the appointing authority needs to resolve? Should self-appointment be subject to an explicit rule of conduct? [..]
Jeffrey L. Dunoff & Chiara Giorgetti, Introduction to the Symposium: A Focus on Ethics in International Courts and Tribunals, 113 AJIL Unbound 279–283 (2019).