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University of Petroleum and Energy Studies, Dehradun

ALTERNATIVE DISPUTE RESOLUTION

Final Project Report

Ex Parte Communications between counsel and party appointed arbitrator

Submitted to: Submitted by:

Ms. Huma Mehfooz Abhay Malik - 500061268

(Assistant Professor, SOL UPES) R450217003

Mukul Bhutda - 500061868

R450217065
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ACKNOWLEDGMENT

Firstly, we would like to thank our respected Ms. Huma Mehfooz ma’am for giving us such
an excellent opportunity to showcase our skills, through our project work and enhance and
gain knowledge on this topic.

The project is the result of extensive ultrapure study; hard work and labour, put into make it
worth reading and this was possible only with the heartiest support of our subject teacher. We
wish to acknowledge the efforts of our seniors and friends for putting efforts in completion of
this project.

We wish to acknowledge that in completing this project we had full support of my library
staff. This project would not have been completed without the help of my university’s library.
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AIM

The aim of the whole project is to understand the consequences of the ex parte
communications between the party appointed arbitrator and the counsel for that party. It is
normal for the arbitrator to have an affinity towards the party which appointed them so it is
important to distinguish between normal communications and those communications which
are severe breaches of impartiality and independence and code of ethics of the arbitrator.

RESEARCH QUESTIONS

1. What are the code of ethics, rules followed in the international regime on ex parte
communications.
2. Is the ex parte communication out rightly an evidence of defiled arbitration
proceedings or some other considerations too have to be made.
3. What is the effect of such breaches into the arbitration.

RESEARCH METHODOLOGY

The research methodology used by the author is purely doctrinal and non empirical. It means
that the data collected for the analysis of the topic of the paper is through published sources
and has been acquired from books, magazines, cases and online databases.
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Table of Contents

Topics - Page number -

EX PARTE COMMUNICATIONS WITH ARBITRATOR 4-5

GUIDELINES AND OPINIONS OF SCHOLARS

6-9

ORIGINS AND SCOPE OF THE GOLDEN RULE

10-12

13-15
ARBITRAL/JUDICIAL DECISIONS

16
CONCLUSION

17-19
BIBLIOGRAPHY
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 EX PARTE COMMUNICATIONS WITH ARBITRATOR

The relationship between the parties and the party-appointed arbitrators on a three-member
tribunal has always been the subject of attention and debate. In some parts of the world, the
partisan party-appointed arbitrator has been, and in part still is, part of arbitral reality. In
international arbitration practice, however, it is generally acknowledged that party-appointed
arbitrators are neither lap dogs nor ‘hired guns.’ Rather, arbitrators in international arbitration
are private judges. Like state court judges, they must remain impartial and independent, and
thus willing and able to exercise independent judgment in deciding the case before them. 

If the arbitral proceedings do not follow the principles of impartiality, independence, and
procedural fairness, the arbitral institution would likewise feel the negative impacts of the
ethical violations1. When the arbitrator’s sense of independence and impartiality is not
trusted, then the parties’ faith in the arbitral proceedings could be jeopardized “in an
irreparable way2.” Thus, the behaviour of the arbitrators and the parties can have a significant
impact on the arbitral proceedings and ultimately, the result 3. With a tainted arbitral
proceeding, arbitration ceases to function as an acceptable method of amicably settling the
parties’ disputes in particular institutions, thus increasing the risk of an annulled award or of
rescinded arbitration agreements4. Therefore, tainted ex parte communications clash with the
integrity of arbitral institutions, as well as with arbitrator impartiality and procedural fairness,
two vital elements of state-to-state arbitration.

In combination with the parties' essential due process rights to be heard and to be treated
equally, the position of each arbitrator as a private judge affects the way in which the parties
are allowed to communicate with the arbitrator. The ‘Golden Rule’ is that case-related ex
parte communications with arbitrators – regardless of who appointed them – should be
avoided. This Golden Rule is recorded in one of the first soft law instruments, or ‘para-

1
Anne Marie Whitesell, Independence in ICC Arbitration: ICC Court Practice Concerning the Appointment,
Confirmation, Challenge and Replacement of Arbitrators, ICC International Court Of Arbitration Bulletin,
Special Supplement 22, Case 5 (2007).
2
Crenguta Leaua, Factors Taken into Consideration by the Parties When Appointing an Arbitrator, 33 Procedia -
Social And Behavioral Sciences 925, 928 (2012).
3
Id.
4
Hrvoje Sikirić, Arbitration and Public Policy, 7 Croat. Arbit. Yearb. 85, 95 (2000).
 Page 5 of 20

regulatory texts',  of international arbitration, the 1987 IBA Rules of Ethics for International
Arbitrators:

5.3 Throughout the arbitral proceedings, an arbitrator should avoid any unilateral
communications regarding the case with any party, or its representatives. If such
communication should occur, the arbitrator should inform the other party or parties and
arbitrators of its substance.’ 

All communications to the arbitral tribunal by one party shall be communicated by that party
to all other parties. Such communications shall be made at the same time, except as otherwise
permitted by the arbitral tribunal if it may do so under applicable law.

The role of a party appointed arbitrator is to help the Tribunal better understand the position
of the party who selected that arbitrator, not to act as a secret mouthpiece to sway the
Tribunal5. Thus, ex parte communications do not exclusively affect the validity of documents
presented by a party-appointed arbitrator, as the Tribunal seemed to suggest, but they could
also substantively and prejudicially affect the Tribunal’s understanding of the dispute through
lens of a party without the presence of opposing party. The altered understanding of the
dispute could subsequently have an impact on the official record of the arbitration6.

Normally, the appropriate initial course of action is for the offending arbitrator to be
requested to refrain from making any further improper communications with the party.
Where the offending arbitrator fails or refuses to refrain from improper communications, the
remaining arbitrators may inform the innocent party in order that he may consider what
action he should take. An arbitrator may act unilaterally to inform a party of the conduct of
another arbitrator in order to allow the said party to consider a challenge of the offending
arbitrator only in extreme circumstances, and after communicating his intention to his fellow
arbitrators in writing.’

5
John Uff, UK: Party-Appointed Arbitrators: What is their Proper Role?, MONDAQ (Oct. 7, 2013),
http://www.mondaq.com/x/267544/Arbitration+Dispute+Resolution/PartyAppointed+Arbitrators+What+Is
+Their+Proper+Role.
6
Croatia v. Slovenia, PCA Case Repository 2012-04, Partial Award, P 16 (Perm. Ct. Arb. June 30, 2016).
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 GUIDELINES AND OPINIONS OF SCHOLARS

Many scholars note the importance of arbitral impartiality and procedural fairness, which are
threatened during ex parte communications7. Echoing the principles of the PCA Optional
Rules, Bazil Oglinda, an arbitrator for the International Chamber of Commerce and the
Romanian Chamber of Commerce, described impartiality as “the watchword of all tribunals,
including arbitrators8.” Even though parties appoint arbitrators that would serve the selector’s
interests, the barrier between counsel and impartial arbitrators should remain standing 9. Once
the barrier is torn down, many arbitration rules would permit vacatur of the arbitral award;
therefore, the maintenance of arbitrator impartiality and independence, as well as procedural
fairness to the parties, hold a high position of importance in arbitration.111 Analyzing
multiple arbitration laws, scholars commented on the behavior of the arbitrators and its
impacts on the equal treatment of the parties, such as in the United States, where the courts
apply the Federal Arbitration Act’s “evident partiality” standard if the arbitrators have shown
“corrupt” behavior or where the courts analyze whether the challenged arbitrator acted “in
bad faith” to “deprive [a] party of a fundamentally fair proceeding 10.” Thus, arbitrator
impartiality and procedural fairness are inextricably linked with dispute resolution.

Ms. Carita Wallgren-Lindholm, a member of the ICC International Court of Arbitration, and
Mr. James Carter, a U.S. arbitrator with a great understanding of the ICC, LCIA, AAA, and
ICSID, considered the role of an arbitrator and the impermissibility of ex parte
communications, which damage procedural fairness11.

Commenting from the perspective of a modern arbitrator, Wallgren-Lindholm wrote that

arbitrators should prevent any party attempts at ex parte communications. She reasoned that

7
Bazil Oglinda, Key Criteria in Appointment of Arbitrators in International Arbitration, 5 TRIBUNA
JURIDICA 124, 127 (2015).
8
Bazil Oglinda, Key Criteria in Appointment of Arbitrators in International Arbitration, 5 Tribuna Juridica 124,
127 (2015).
9
Christoph Liebscher & Dorit Ungar, The New Austrian Arbitration Law and the Federal Arbitration Law in the
United States – A Comparison, 21-5 Mealey’s Intl. Arb. Rep. 15 (2006).
10
Federal Arbitration Act, 9 U.S.C. § 10(a)(2) (2017).
11
Carita Wallgren-Lindholm, Uneven Representation and Imbalanced Resources Between Parties to an
International Arbitration or in Relation to the Arbitral Tribunal: Restoring Reasonable Balance and Symmetry in
the Hearing Room (or Not), in Stories From The Hearing Room: Experience From Arbitral Practice 195
(Domitille Baizeau & Bernd Ehle eds., 2015).
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ex parte communications with the arbitrator could lead to an “inappropriate flow of

information or misdirected intentions12.”

referring to the American Code of Ethics, Carter enumerated the six canons of arbitrator
ethics13. For instance, the arbitrator must “avoid [the] appearance of impropriety” and “be
faithful to the relationship of trust and confidentiality inherent in that office.” Clarifying the
latter canon, Carter explained that the arbitrator cannot make use of discovered information
“to affect adversely the interest of others,” which could likely include information gained in
ex parte discussions.

Alfonso Gomez-Acebo, the co-head of the International Arbitration Group at Baker

McKenzie, described three requirements of an impartial and independent arbitrator 14.
Namely, the arbitrator must: (1) have an “unbiased mind,” which is “not different” from a
judge; (2) have an “unbiased behavior”; and (3) keep “a minimum distance” from the parties.

Therefore, just like a judge, the arbitrator acts as a counterbalance of fairness between the
arbitrating parties15. the arbitrator has the obligation to act in a way that would grant the
parties “a fair and public hearing16.” The comparison of arbitrators with judges explains the
arbitrator’s “quasi-judicial” role, in which the arbitrator must deliver a “faithful, honest and
disinterested” analysis of the proceedings17.

Arbitration rules, including those from London Court of International Arbitration (LCIA), the
American Arbitration Association (AAA), and the UNCITRAL Arbitration Rules, require
that the arbitrators be “strictly impartial,” and, as a corollary, the rules forbid any ex parte
communications between party members and arbitrators18. In addition, institutional rules from
other parts of the globe contain provisions similar to the PCA, such as the Hong Kong
International Arbitration Centre, Singapore International Arbitration Centre, Judicial
Arbitration and Mediation Services, Vienna International Arbitration Centre, and
12
Id.
13
James Carter, The Rights and Duties of the Arbitrator: Six Aspects of the Rule of Reasonableness, in The
Status Of The Arbitrator 24 (ICC Pub. No. 564, 1995).
14
Alfonso Gomez-Acebo, The Standard of Impartiality and Independence, Partyappointed Arbitrators In
International Commercial Arbitration, International Arbitration Law Library 69, 79 (2016).
15
Tumey v. Ohio, 273 U.S. 510, 532 (1927).
16
Ahmed S. El-Kosheri & Karim Y. Youssef, The Independence of International Arbitrators: An Arbitrator’s
Perspective, in SPECIAL SUPPLEMENT 2007: Independence Of Arbitrators, Icc Intl. Ct. Of Arb. Bull. 43
(ICC Pub. 690, 2008).
17
David J. Branson, American Party-Appointed Arbitrators—Not the Three Monkeys, 30 Dayton L. Rev. 1, 49
(2004).
18
Rita Davis & Allan B. Moore, An American Abroad: The Divergent Worlds of U.S. and U.K. Insurance
Arbitrations, 29-1 Mealey’s Intl. Arb. Rep. 26 (2014).
 Page 8 of 20

International Institute for Conflict Prevention and Resolution 19. As a result, virtually all
national arbitration laws and institutional rules value impartiality of the arbitral tribunal and
procedural fairness toward the parties; if arbitrators favor one of the parties in a partial
manner, the arbitral proceedings could become tainted20.

The IBA and the LCIA alike specifically addressed the matter of ex parte communications
between arbitrators and lawyers. The LCIA Annex addresses with relative specificity the
matter of ex parte communications between arbitrators and lawyers. Article 13.4 of the 2014
LCIA Rules generally prohibit parties and their legal representatives from initiating any
unilateral contact relating to the arbitration or the parties’ dispute with any member of the
Arbitral Tribunal. Guideline 7 of the IBA Guidelines on Party Representation follows similar
contours, providing that unless otherwise agreed a party representative should not engage in
any ex parte communications with an arbitrator concerning the arbitration, while making
exceptions for discussions about availability, expertise and selection of the presiding
arbitrator.

Arbitral codes of ethics have increasingly won acceptance in international arbitration, and
they reinforce the necessity of impartiality in arbitration 21. In international practice,
arbitrators hold a high regard for the implementation of the IBA Guidelines on Conflicts of
Interest in International Arbitration.

The IBA Rules of Ethics for International Arbitrators (1987), state, with respect to
conversations between parties and arbitrators:

5.3 Throughout the arbitral proceedings, an arbitrator should avoid any unilateral
communications regarding the case with any party, or its representatives. If such
communication should occur, the arbitrator should inform the other party or parties and
arbitrators of its substance.

5.4 If an arbitrator becomes aware that a fellow arbitrator has been in improper
communication with a party, he may inform the remaining arbitrators and they should
together determine what action should be taken. Normally, the appropriate initial course of

19
Hong Kong International Arbitration Centre, Arbitration Rules, art. 11.1 (2013); Singapore International
Arbitration Centre, Arbitration Rules, art. 13.1, 13.6 (2016); Judicial Arbitration and Mediation Services,
Arbitration Rules, art. 9.1, 13.3 (2014); Vienna International Arbitration Centre, Arbitration Rules, art. 16.2
(2013); International Institute for Conflict Prevention and Resolution, Arbitration Rules, art. 5.4, 7.1 (2014).
20
Rita Davis & Allan B. Moore, An American Abroad: The Divergent Worlds of U.S. and U.K. Insurance
Arbitrations, 29-1 Mealey’s Intl. Arb. Rep. 26 (2014).
21
IBA Council, IBA Guidelines on Conflicts of Interest in International Arbitration, at 2 (Oct. 23, 2014).
 Page 9 of 20

action is for the offending arbitrator to be requested to refrain from making any further
improper communications with the party. Where the offending arbitrator fails or refuses to
refrain from improper communications, the remaining arbitrators may inform the innocent
party in order that he may consider what action he should take. An arbitrator may act
unilaterally to inform a party of the conduct of another arbitrator in order to allow the said
party to consider a challenge of the offending arbitrator only in extreme circumstances, and
after communicating his intention to his fellow arbitrators in writing.

Therefore, the IBA Guidelines and Rules of Ethics discourage the arbitrators from engaging
in ex parte proceedings, and they echo the growing international consensus on arbitrator
impartiality and independence22.

The Golden Rule reflects one of the essential differences between arbitration and mediation.
Arbitration is a private court procedure. Like any other formal procedure before domestic
courts or international tribunals, it is subject to mandatory due process rules. These due
process rules ensure the legitimacy of the procedure. Mediation, on the other hand, is an
assisted negotiation process. It is purely contractual. Due process rights do not apply because
this contractual process lacks the quality of a formal procedure. Caucus sessions between the
mediator and one party in the absence of the other, therefore, belong to the accepted arsenal
of mediation techniques.

Lawrence Newman & David Zaslowsky, When Arbitrators Stray: Ex Parte Communications, New York L. J.
22

(Sept. 25, 2015), http://nysbar.com/blogs/ResolutionRoundtable/When%20Arbitrators%20Stray.pdf.

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 ORIGINS AND SCOPE OF THE GOLDEN RULE

The Golden Rule is based on a blend of legal considerations related to the role of the
arbitrator as a private judge, the impact of the parties' due process rights on the
communication between them and the arbitrators, and common sense. However, that Golden
Rule, like most other rules, is subject to a number of reservations.

The first reservation relates to the scope ratione temporis. The 2013 IBA Guidelines on Party
Representation in International Arbitration (4) defines “ex parte communications” as any oral
or written communications between a party representative and an arbitrator or a prospective
arbitrator without the presence or knowledge of the opposing party or parties. It is noteworthy
that this definition also includes communications with a ‘prospective arbitrator.’ However,
unilateral contacts between a party and a nominee (during the search for a party-appointed
arbitrators) or between a party and the party-appointed arbitrator (during the search for the
president of the tribunal) are unavoidable. In fact, they have become common practice in
international arbitration. The Green List of the IBA Guidelines on Conflicts of Interest of
2004 takes account of the practice of communicating with prospective arbitrators. Formulated
from the perspective of the arbitrator, it provides that such ex parte contacts need not be
disclosed by the arbitrator once appointed, so long as the contact is limited and does not
address the merits or procedural aspects of the dispute:

4.5.Contacts between the arbitrator and one of the parties

4.5.1 The arbitrator has had an initial contact with the appointing party or an affiliate of the
appointing party (or the respective counsels) prior to appointment, if this contact is limited to
the arbitrator's availability and qualifications to serve or to the names of possible candidates
for a chairperson and did not address the merits or procedural aspects of the dispute.

Article 8 of the 2013 IBA Guidelines on Party Representation in International Arbitration,

even though more elaborate, contains essentially the same principle, albeit formulated from
the perspective of counsel.  At Article 8(d) of the same, counsel is warned that, while a
general description of the dispute may be permissible, counsel should not seek out the views
of the prospective party-nominated arbitrator or presiding arbitrator on the substance of the
Dispute.
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8. It is not improper for a Party Representative to have Ex Parte Communications in the

following circumstances:

A Party Representative may communicate with a prospective Party-Nominated Arbitrator

to determine his or her expertise, experience, ability, availability, willingness and the
existence of potential conflicts of interest.
A Party Representative may communicate with a prospective or appointed Party-
Nominated Arbitrator for the purpose of the selection of the Presiding Arbitrator.
A Party Representative may, if the Parties are in agreement that such a communication is
permissible, communicate with a prospective Presiding Arbitrator to determine his or her
expertise, experience, ability, availability, willingness and the existence of potential
conflicts of interest.
While communications with a prospective Party-Nominated Arbitrator or Presiding
Arbitrator may include a general description of the dispute, a Party Representative should
not seek the views of the prospective Party-Nominated Arbitrator or Presiding Arbitrator
on the substance of the Dispute.’

Subsection (d) reveals the thin line between admissible and non-admissible conversations in
scenarios where ex parte communications are allowed.

The second reservation relates to the scope and limits of the Golden Rule. Not all
communications between counsel or party-representatives and the party-appointed arbitrators
during the arbitration are forbidden. It is for that reason that Section 5.3 of the 1987 IBA
Rules of Ethics for International Arbitrators  provides that an arbitrator ‘should’ and not
‘shall’ or ‘must’ avoid any unilateral communications regarding the case with any party, or
its representatives. The relevant test is whether the other party's due process rights are in
danger of being violated if a party communicates ex parte with the arbitrator.

The other party while claiming setting aside of award on such ground must additionally show
that the ex parte transgression had a negative impact on the arbitral process23. 253 Without
demonstrating this, the defect could be cured by simply replacing the party-appointed
arbitrators and counsel members engaged in ex parte communications and restarting the
proceedings, as the current Tribunal decided.

The Arbitration Rules of the Centre of International Dispute Resolution (ICDR) of the
American Arbitration Association provide, in Rule 13, as follows:
23
Victor Pey Casado v. Chile, ICSID Case No. ARB/98/2, Award of 8 May 2008.
 Page 12 of 20

No party or anyone acting on its behalf shall have any ex parte communication relating to the
case with any arbitrator, or with any candidate for party-appointed arbitrator, except to advise
the candidate of the general nature of the controversy and of the anticipated proceedings and
to discuss the candidate's qualifications, availability, or impartiality and independence in
relation to the parties, or to discuss the suitability of candidates for selection as a presiding
arbitrator where the parties or party-appointed arbitrators are to participate in that selection.

Other institutions have similar rules: those of the Hong Kong International Arbitration Centre
(Article 11.5); the Singapore International Arbitration Centre (Article 10.7); JAMS, in its
International Arbitration Rules (Rule 12); and the CPR Institute in its Administered
International Rules (Rule 7.4). The Arbitration Rules of the London Court of International
Arbitration also contain a similar provision, Article 13.4, which states as follows:

13.4.During the arbitration from the Arbitral Tribunal's formation onwards, no party shall
deliberately initiate or attempt to initiate any unilateral contact relating to the arbitration or
the parties' dispute with any member of the Arbitral Tribunal or any member of the LCIA
Court exercising any function in regard to the arbitration (but not including the Registrar),
which has not been disclosed in writing prior to or shortly after the time of such contact to
all other parties, all members of the Arbitral Tribunal (if comprised of more than one
arbitrator) and the Registrar.

Other important international institutions deal with ex parte communications between

arbitrators and parties more obliquely, as in the Arbitration Rules of the United Nations
Commission on International Trade law (UNCITRAL), which state, in Article 17.4, as
follows:
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 ARBITRAL/JUDICIAL DECISIONS

Arbitral decisions show the importance of impartiality of the arbitrators and procedural
fairness. In particular, one unpublished ICC decision focused on the behavior of an arbitrator,
who was “an acting judge” and had access to information that other members of the tribunal
did not possess24. Because personal and unequal access to information led to questions about
the arbitrator’s impartiality, the ICC Court did not “confirm [the arbitrator] on ‘grounds of
[his] past.’” Thus, arbitrators must base their decisions on the arguments and evidence
presented by both parties, instead of relying on ex parte sources.

In the unpublished case, ICC Case 12171, a maritime arbitral proceeding between the
claimant, a Croatian shipyard, and the respondent, a German company, the ICC Court held
that the award was “non-binding upon the parties” since the German respondent engaged in
ex parte communications with the expert arbitrator 25. In its decision, the ICC Court first
commented on the lack of impartiality and independence of the expert arbitrator. Namely, the
arbitrator “had discussions with [Respondent] about the [arbitral] procedure” and believed
that he was “very close to Respondent”; the arbitrator was not in contact with the claimant,
and the claimant was unaware of the ex parte communications between the arbitrator and the
respondent.

The Buraimi Oasis case of 1955 between the United Kingdom and Saudi Arabia illustrated
that the violation of ex parte proceedings, if extensive, could lead not only to an annulled
award but also to abandoned arbitral proceedings26. In Buraimi Oasis, the Saudi party-
appointed arbitrator, Sheikh Yusuf Yasin, was often in contact with the Saudi Arabian
counsel. The Saudi government bribed multiple arbitrators to decide in Saudi Arabia’s favor;
in response, the arbitrators resigned from both sides until the process was abandoned 27.
Global Arbitration Review described that the ex parte proceedings and the replacement of
biased arbitrators caused an “instigation of the tribunal.”

Some arbitral decisions likewise implied the necessity of arbitrator impartiality in carrying
out the arbitration agreement. For example, in Guinea-Bissau v. Senegal, the International
Court of Justice described two major goals of state-to-state arbitration: (1) to “entrust an

24
Karel Daele, Challenge And Disqualification Of Arbitrators In International Arbitration 285 (2012).
25
Case No. 12171 of 2011, Award on Preliminary Issues, Vol. 22, No. 1 (ICC Int’l Ct. Arb.).
26
Alison Ross, “Poisoned Waters”: Croatia’s Stance on the Sekolec Scandal, 10 Global Arb. Rev. 15 (Aug. 19,
2015).
27
John Barrett Kelly, ‘The Buraimi Oasis Dispute’ in International Affairs, 32 Royal Instit. Of Int’l Aff. 318,
320 (1956).
 Page 14 of 20

arbitral tribunal with the task of settling a dispute in accordance with the terms agreed by the
parties”; and (2) to settle all disputes “peaceful[ly] and [definitely] . . . that had theretofore
been incapable of amicable resolution28.” Arbitration, therefore, requires trust in the
arbitrators to deliver an award in compliance with the arbitration agreement, and the
proceedings must be carried out fairly and amicably; without fair and amicable proceedings,
the parties would have very likely not opted to settle their disputes via arbitration.

Taking procedural fairness one step further in the area of ex parte communications, Gary
Born stated that “undisclosed ex parte contacts concerning the merits of the parties’ dispute
are presumptively regarded as improper29.” To support this claim, Born cited United Food,
where an arbitral award was challenged due to an arbitrator’s involvement in ex parte
communications; namely, the arbitrator made use of the information gained in these
discussions30. Various cases such as United Food, however, illustrate that the complainant
must show more than the mere existence of ex parte communications to annul an award or the
proceedings, such as presenting evidence of the communications’ effect on procedural
fairness or proving the breach of the object and purpose of the arbitration agreement31.

In the case of I.C.J. Advisory Opinion, Legal Consequences for States of the Continued
Presence of South Africa in Namibia and Military and Paramilitary Activities in and
against Nicaragua32, the International Court of Justice (I.C.J.) in its opinion stated that ex
parte communications only make an arbitral dispute impossible to resolve when such
communications render the “object and purpose of the treaty” impossible to complete.

The case of Croatia v Slovenia highlighted the conflict between the binding nature of the
award and the integrity of arbitral proceedings33. Despite the steadfast assurances of Slovenia
and Croatia in agreeing to settle their disputes through the good faith application of
international law, evidence emerged that Slovenia violated the Arbitration Agreement by
engaging in ex parte communications with its party-appointed arbitrator on July 22, 2015.
According to the transcript, the Slovenian agent and arbitrator discussed the proposed
delimitation of the Croatian-Slovenian boundary lines. The evidence also showed that the

28
Guinea-Bissau v. Senegal, 1991 ICJ Rep 26.
29
Gary B. Born, International Arbitration: Cases And Materials, 745 (2d ed., 2015).
30
United Food & Commercial Workers Int’l Union v. SIPCO, No. 4-90-CV-70250, 1992 U.S. Dist. LEXIS
21332.
31
Glass, Molders, Pottery v. Excelsior Foundry, 56 F.3d 844, 846 (7th Cir. 1995).
32
1971 I.C.J. Rep. 16.
33
Croatia v. Slovenia, PCA Case Repository 2012-04, Partial Award, P 16 (Perm. Ct. Arb. June 30, 2016).
 Page 15 of 20

counsel proposed a strategy on how to influence the arbitrators so that they rule in favor of
Slovenia.

After evidence of Slovenia’s ex parte communications was revealed, Croatia highlighted the
communication during arbitral proceedings. Describing the event as an “apparent collusion”
between the Slovenian parties and Dr. Sekolec, the Croatian counsel cited Article 9.1 of the
Terms of Appointment, which forbade ex parte communications. Croatia described the
incident as a “fundamental breach of professional ethics and dishonesty that . . . violated . . .
fundamental due process,” thus depicting the entire arbitration process as “tainted.”

After reconstituting the tribunal started the proceedings de novo. Croatia refused to be
participate in the same on the ground that the ex parte communications made arbitration
impossible to perform in unbiased manner. The Tribunal understated the impact of the ex
parte communications on the fairness of the arbitral proceedings. The proceedings were
clearly vitiated and in the light of the discussion above and case laws providing for the same,
the tribunal was wrong in proceeding with the arbitration.
 Page 16 of 20

 CONCLUSION

In the light of the recent cases, the question arises as to how to

address severe and intentionalbreaches of arbitrator’s duty and to preserve the integrity of
arbitration proceedings when one of the arbitrators turns out to be actually partial without any
doubt. This is an alarming reminder that perhaps rethinking the remedies for such misconduct
should find its place on the arbitration table. The regulation of arbitrators’ liability and
procedural consequences of such breaches certainly deserve attention and possible
harmonization on the global level.Moreover, the thin line between permissible and non-
permissible communications have to be kept in mind.
 Page 17 of 20

 BIBLIOGRAPHY

Articles

1. Lawrence Newman & David Zaslowsky, When Arbitrators Stray: Ex Parte

Communications, New York L. J. (Sept. 25, 2015)
2. Crenguta Leaua, Factors Taken into Consideration by the Parties When Appointing an
Arbitrator, 33 Procedia - Social And Behavioral Sciences 925, 928 (2012).
3. Hrvoje Sikirić, Arbitration and Public Policy, 7 Croat. Arbit. Yearb. 85, 95 (2000).
4. Christoph Liebscher & Dorit Ungar, The New Austrian Arbitration Law and the
Federal Arbitration Law in the United States – A Comparison, 21-5 Mealey’s Intl.
Arb. Rep. 15 (2006).
5. James Carter, The Rights and Duties of the Arbitrator: Six Aspects of the Rule of
Reasonableness, in The Status Of The Arbitrator 24 (ICC Pub. No. 564, 1995).
6. Alfonso Gomez-Acebo, The Standard of Impartiality and Independence, Party
appointed Arbitrators In International Commercial Arbitration, International
Arbitration Law Library 69, 79 (2016).
7. Ahmed S. El-Kosheri & Karim Y. Youssef, The Independence of International
Arbitrators: An Arbitrator’s Perspective, in SPECIAL SUPPLEMENT 2007:
Independence Of Arbitrators, Icc Intl. Ct. Of Arb. Bull. 43 (ICC Pub. 690, 2008).
8. Rita Davis & Allan B. Moore, An American Abroad: The Divergent Worlds of U.S.
and U.K. Insurance Arbitrations, 29-1 Mealey’s Intl. Arb. Rep. 26 (2014).
9. Lawrence Newman & David Zaslowsky, When Arbitrators Stray: Ex Parte
Communications, New York L. J. (Sept. 25, 2015).
10. Alison Ross, “Poisoned Waters”: Croatia’s Stance on the Sekolec Scandal, 10 Global
Arb. Rev. 15 (Aug. 19, 2015).
11. John Barrett Kelly, ‘The Buraimi Oasis Dispute’ in International Affairs, 32 Royal
Instit. Of Int’l Aff. 318, 320 (1956).

Guidelines

1. IBA Guidelines on Party Representation in International Arbitration, 2013

2. IBA Rules of Ethics for International Arbitrators, 1987
3. IBA Guidelines on Conflicts of Interest in International Arbitration, 2014
 Page 18 of 20

Online databases

1. Heinonline.com
2. Lexisnexis.org
3. J Store
4. West Law
5. Kluver