When practitioners and scholars speak, in articles and seminars, about corruption in international arbitration, they are most often referring to bribery on the part of the parties in obtaining government contracts. Only rarely does the subject of wrongful conduct by arbitrators come up. When discussed, it usually refers to transgressions no more serious than potential or actual conflicts of interest and failures by arbitrators to make appropriate disclosures. It is on such issues—having primarily to do with the selection of arbitrators—that ethical rules and guidelines published by arbitral institutions focus. However, recent publicly disclosed conduct by an arbitrator in an important state-to-state arbitration involved another type of conduct—ex parte communications by an arbitrator with one of the parties in the course of the proceedings.

This was the conduct that was recently publicly revealed to have been engaged in in an arbitration proceeding between Croatia and its Balkan neighbor, Slovenia, involving a dispute over the demarcation of the border in the Adriatic Sea between the two countries. Jernej Sekolec, formerly the Secretary of the United Nations Commission on International Trade Law (UNCITRAL) and a well-known international arbitrator, was appointed as an arbitrator by the government of his native country Slovenia. Croatia also appointed an arbitrator. There were a total five arbitrators—each party selected one, and the parties agreed on three additional arbitrators of different nationalities. The arbitration was conducted, by agreement of the parties, under the auspices of the Permanent Court of Arbitration (PCA) in The Hague.

It was reported in the press in July of this year that, at the end of last year and in the beginning of 2015, Sekolec had telephone conversations with Simona Drenik, the agent of Slovenia for the arbitration. The conversations were recorded, evidently covertly and perhaps illegally, by agents of the Croatian government. At the time of these conversations, deliberations among the five arbitrators were well under way, the hearings having ended in June 2014. The telephone conversations, carried out for the most part in the Slovenian language, were published, in translation, in newspapers in Croatia and Slovenia. The newspaper accounts have been translated into English and summarized, for the benefit of the international arbitration community, in the online publication, Global Arbitration Review (GAR).