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.