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Home Articles posted by Arman Sarvarian and Rudy Baker

Arbitration between Croatia and Slovenia: Leaks, Wiretaps, Scandal (Part 3)

Published on August 25, 2015        Author: 

In our last post, we analysed Croatia’s denunciation of its arbitration with Slovenia emerging from the scandal of secret communications between the arbitrator of Slovenian nationality and the Slovenian agent. In this final post, we examine the ramifications of the scandal for the international judicial system: that is, the informal set of international courts and tribunals in which at least one of the parties is a State. We suggest that the scandal is not an isolated case but rather symptomatic of systemic problems. This, we argue, supports the case for the investment of energy by the college of international lawyers to investigate the case for procedural reform in international courts and tribunals.

If we may be permitted to indulge in a spot of shameless advertisement, we are co-editors (along with Dr Filippo Fontanelli (University of Edinburgh), and Dr Vassilis Tzevelekos (University of Hull)) of an edited volume entitled Procedural Fairness in International Courts and Tribunals due to be published in September by the British Institute of International and Comparative Law. As this story broke – just as we were putting the finishing touches to the concluding chapter to the volume (thus seeking to justify, if only to ourselves, the effort) – it occurred to us that we could not have concocted a more apt scenario encapsulating the subject if we had tried.

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Arbitration between Croatia and Slovenia: Leaks, Wiretaps, Scandal (Part 2)

Published on August 7, 2015        Author: 

As we described in our first post of last week, the completion of the arbitration between Croatia and Slovenia has been thrown into doubt by the revelation of illicit contacts between the Slovenian arbitrator (‘Slovenia’s arbitrator’? Or ‘the arbitrator of Slovenian nationality’? More on this in our next post) and the Slovenian agent. On 24 July, Croatia applied to the Tribunal to ‘suspend the proceedings with immediate effect’ and invited ‘the remaining members of the Tribunal to review the totality of the materials presented, and reflect on the grave damage that has been done to the integrity of the entire proceedings’. On 28 July, the Tribunal published a press release in which it announced that a hearing on the Croatian application would be arranged ‘in the coming days’. On 30 July, the arbitrator of Croatian nationality, Professor Budislav Vukas (formerly Vice-President of the International Tribunal for the Law of the Sea), resigned from the arbitration, and on July 31 Croatia itself formally informed the Tribunal that it ‘cannot continue the process in good faith’ and that ‘in accordance with the relevant provisions of the Vienna Convention on the Law of Treaties’ it ‘informed the other Signatory to the Agreement of its intention to terminate’ the Arbitration. On 3 August, ICJ President Abraham resigned from the Tribunal, informing it that he had agreed to his appointment to ‘help restore confidence between the Parties and the Arbitral Tribunal and to allow the process to continue normally, with the consent of both Parties’ but that ‘the current situation cannot meet that expectation’ so that ‘it was no longer appropriate’ for him to serve as arbitrator.

At the end of our first post, we posed a number of preliminary questions that this scandal raises. In this post, we shall attempt, if not to provide definitive answers, at least to illustrate the context and consequences of these issues, with specific attention to the immediate repercussions for the arbitration. We shall follow this with a Part 3 post, on the wider implications for the international legal profession and the international judicial system.

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Arbitration between Croatia and Slovenia: Leaks, Wiretaps, Scandal

Published on July 28, 2015        Author: 

The Arbitration between Croatia and Slovenia, brokered by the European Commission, conducted under the auspices of the Permanent Court of Arbitration and concerning delimitation of the maritime and land boundary between the two States, has been ongoing over the past three years. By the Tribunal’s estimation, it has featured nearly 1,500 documentary exhibits and legal authorities and 250 figures and maps. Following the conclusion of the oral phase of proceedings in June 2014, the Tribunal issued a press release on 10 July of this year in which it announced that the award would be promulgated in mid-December.

All of this progress towards the peaceful settlement of the dispute was thrown into sudden doubt by the revelation that the arbitrator of Slovenian nationality, Dr Jernej Sekolec, was secretly in contact with the Slovenian agent, Simona Drenik. These contacts, which allegedly took place during two secret telephone conversations on 15 November 2014 and 11 January 2015, included discussions of how to best influence the other arbitrators to rule in Slovenia’s favour, the sharing of Slovenian submissions directly with Dr Sekolec (who stated that he would present them to the other arbitrators as his own ‘notes’ on the case), and the advance leaking of the deliberations of the Tribunal to Ms Drenik, including the tip that the Tribunal would award to Slovenia at least two thirds of the disputed waters it had claimed.

The story was broken on Wednesday 22 July by the Croatian daily newspaper Večernji list (acting on information first leaked in the Serbian tabloid Kurir), which published transcripts and audio recordings of the conversations between the two on its website. For a description in English, see this story by the reputable NGO Balkan Insight.

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