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.
Leaks and Espionage: Old News
As briefly adverted to in our last post, this scandal is, regrettably, nothing new in the history of inter-state adjudication and arbitration. One example is the insinuation that the Registry of the International Court of Justice leaked information to the Australian Government in 1973 concerning the outcome and vote count in the Nuclear Tests Cases (Australia v. France, New Zealand v. France). The Times reported remarks made by the Australian Prime Minister, Mr Gough Whitlam, at a solicitors’ annual dinner in Melbourne in which he (correctly) predicted that the Court would vote 8-6 in Australia’s favour the following day. The Australian agent’s explanation was that the remarks were based on speculation amongst Australian legal advisers. The Registrar (Mr Stanislas Aquarone, of Australian nationality) conducted an investigation in which he concluded that ‘the possibility of indiscretion on the part of any of them can be reasonably excluded’. The Court’s record is published here.
In the Buraimi Oasis Arbitration (Saudi Arabia v. United Kingdom) the arbitration had to be abandoned after two of the three arbitrators refused to serve with the Saudi arbitrator due to his continuous communications with the Saudi legal team, acting effectively as ‘Saudi counsel on the panel’. There are multiple examples of breaches of arbitral confidentiality, including intimidation and other forms of pressure, in investment and commercial arbitration. Therefore, the notion that an arbitrator or judge would violate the oath of independence and impartiality and that an agent would suborn it is not as shocking as one might perhaps expect.
It is curious that, whereas judges and judges ad hoc at the ICJ solemnly declare to ‘perform [their] duties and exercise [their] powers as judge honourably, faithfully, impartially and conscientiously’ there is no comparable affirmation by arbitrators in the PCA Rules of Procedure (for a comparative analysis, see the ‘Reasoned Decision on the Challenge to Judge Greenwood’ of 30 November 2011 in the Mauritius v. United Kingdom arbitration, paragraphs 140-160). Although there are references to independence and impartiality in Articles 6(4) and 10 (on appointments and challenge), there does appear to be a tacit assumption in the procedure that an arbitrator of the same nationality will favour his appointing government.
Although the disclosure of the outcome of a judgment shortly in advance of the formal promulgation – the scenario of Nuclear Tests – is not in itself a relatively severe breach of judicial secrecy, the gravity of the procedural unfairness is that the unprivileged party may justifiably question whether other leaks were made at earlier stage of the proceedings (e.g. – concerning private conversations between judges concerning the case) such as gave the privileged party an illicit advantage in the presentation of its case. For more examples in the literature, see here and here.
The two individuals principally appear to have been caught as the discovery of their communications was allegedly gained through the use of wiretaps by the Croatian intelligence services. If true, there would again be, regrettably, nothing astonishing in the notion of a government deploying its intelligence agencies to spy on the internal deliberations of a court or tribunal (after all, the USA has been accused of routinely spying on the UN Secretary-General and Security Council). See, for example, the myriad allegations in the ICSID arbitrations of Libananco Holdings Co. Ltd v. Turkey and Europe Cement v. Turkey. While it is fair to say that the revelation in Croatia v. Slovenia would not have happened but for the use of wiretapping (if indeed the case), it is equally fair to say that espionage on a member of the Tribunal and/or the other side is ‘procedurally unfair’.
The Appointment of Arbitrators
‘Our country! In her intercourse with foreign nations may she always be in the right; but our country, right or wrong’.
Although procedural misconduct is not exclusively attributable to the continuing importance of nationality as a basis for judicial and arbitral appointment, nationality is nevertheless a significant part of the problem. The appointment of ‘malleable’ judges or arbitrators is by no means confined to the inter-state context. Measures to eliminate (or, at least, reduce) the incentive to appoint ‘malleable’ judges or arbitrators – that is, those under the control of, or subject to pressure by, the appointing government – are a politically challenging endeavour. Yet, they are also key to promoting judicial independence and impartiality with important implication for the long-term viability of the system – see further, for example, the studies here and here.
As difficult as it is to promote judicial impartiality and independence through incremental reform to the selection procedure, it is by no means impossible: the enactment of Practice Directions VII and VIII at the ICJ in 2001 has been quite successful in sharpening the distinction between the Bench and Bar, particularly in the appointment of judges ad hoc. The discernible rise in the appointment of non-nationals (see here for the current list) – often retired judges or serving judges at other courts – goes some way towards realising the famous formulation (at paragraphs 5-6) of Judge ad hoc Lauterpacht in the Bosnia Genocide Case on the duties and role of the judge ad hoc.
Whilst scholarship has traditionally focused on the role of nationality as pertaining to substantive outcomes (e.g. – ‘judicial bias’ in terms of voting records) the Croatia v. Slovenia episode points to what may be an even more pressing concern, namely, that the integrity of the proceedings may be irrevocably damaged, with potentially far-reaching reputational consequences for international law, by leaks or other illicit communications. That the Tribunal did not detect the communications between Sekolec and Drenic in its internal investigation shows the difficulty of an institution self-investigating for procedural misconduct in politically sensitive proceedings. The seeming synchronisation in the denunciation by Croatia and the resignation of the arbitrator of Croatian nationality, Professor Vukas, further illustrates the particular challenge for an arbitrator to maintain complete independence vis-à-vis the country of his nationality.
We consequently suggest that there is a strong case for strengthening the wholesome trend towards non-nationals being appointed as judges ad hoc at the ICJ in the procedures of the international judicial system. Although there are many examples of judges and arbitrators behaving in full independence, even in voting against their countries, this requires a degree of personal courage – potentially endangering professional prospects or worse – that is unreasonable to expect of all. A tradition of ‘wholly neutral panels’ – namely, panels in which nationals of neither party are present – would not preclude leaks or other illicit communications with the parties but would reduce the likelihood of such capers taking place.
Moreover, the scandal points to the potential utility of a review mechanism for judgments or awards that are alleged to have been based on serious procedural unfairness. While the ICJ has the possibility under Article 61 of its Statute of revision of a judgment for newly discovered facts, this has yet to be applied in this way (even concerning the Corfu Channel judgment, now known to have been partially based on a successful fraud). For that matter, the Court has never found an Article 61 application to be admissible, rejecting the three applications (here, here and here) made in its history. There is no counterpart to Article 61 in PCA procedure (see here).
Ultimately, legislation of ever-denser procedural rules is not a panacea for such problems, though legislation, properly and sparingly done, can be valuable. Informal measures, such as the aforementioned change in the appointments of judges ad hoc, can also play a valuable role in the inculcation of the force of tradition in an international judicial culture in which the values of independence and integrity are foremost. Mechanisms and rules are only useful insofar as courts and tribunals utilise them: robust procedures promote their long-term reputations and, by extension, the health and growth of their dockets. Procedural reform balancing judicial discretion and procedural integrity, avoiding the misleading marriage between more rules and more rigour, and making judicious use of the full range of formal and informal tools to promote healthy procedural practices, is a worthy goal to remedy systemic weaknesses and thereby promote its long-term interests.