The Arbitral Tribunal (UNCLOS, Annex VII) in respect of the Dispute Concerning the Detention of Ukrainian Naval Vessels and Servicemen (Ukraine v. the Russian Federation), PCA Case No. 2019-28, issued its Decision on Challenges on 6 March 2024. In accordance with Article 19(1) of the Rules of Procedure (22 November 2019) and Paragraph 7 of Procedural Order No. 8 (15 December 2023), the Decision on Challenges is issued by the three unchallenged Members by majority vote [Decision on Challenges, para. 1].
On 17 October 2023 the Russian Federation brought to the Arbitral Tribunal’s attention the fact that Professor McRae and Judge Wolfrum had voted, as members of the Institute of International Law (IDI), in favour of the Declaration of The Institute of International Law on Aggression In Ukraine (1 March 2022), arguing this raised impartiality concerns contrary to Sections 4.7-4.8 of the Terms of Appointment (22 November 2019) [Decision on Challenges, paras. 27, 31]. The Russian Federation submitted its Statement of Challenges on 24 November 2023, requesting the tribunal devise a procedure for deciding on the challenges and requesting the disqualification of Professor McRae and Judge Wolfrum as arbitrators [Decision on Challenges, para. 36]. Procedural Order No. 8 (15 December 2023) established the procedure for a decision on the challenges, while Procedural Order No. 7 (1 December 2023) extended the remaining written submission deadlines and reserved the week of 27 May 2024 for hearings on the merits.
On the standard of independence and impartiality, the Tribunal noted UNCLOS, the Terms of Appointment and the Rules of Procedure “indicate certain general principles pertaining to the qualifications of arbitrators”, while a Tribunal in the Chagos Marine Protected Area Arbitration (Reasoned Decision on Challenge, para. 166) was able to derive the applicable standard for upholding a challenge for lack of independence and impartiality in inter-State arbitration proceeding [Decision on Challenges, para. 87-89]. The “justifiable doubts” standard is an objective standard and the Tribunal agreed with the exhortation to adhere to “the standards applicable to inter-State cases” [Decision on Challenges, paras. 90-92].
The Tribunal continued:
[I]t is the view of the Arbitral Tribunal that it can draw guidance from all materials emanating from bodies called upon to dispense justice with comparable concerns for impartiality, independence and equality of treatment of parties, provided that the Arbitral Tribunal properly examines to what extent any principles or holdings can be appropriately transposed to the interState context.
Decision on Challenges, paras. 94-96
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[I]n keeping with the established practice of inter-State arbitral tribunals […] The disclosure standard refers to circumstances that are of such a nature that they could give rise to justifiable doubts if their gravity or appreciation in the context of a given case were such as to lead to disqualification […] the significance to be attributed to non-disclosure depends on the circumstances of the case […] failure in this instance was an aberration on the part of two conscientious arbitrators, and does not on its own impact the assessment of their independence and impartiality.
On the timelines of the challenges by Russia, the Tribunal noted:
[A] timeliness requirement can be derived from and applied on the basis of the general requirement of good faith, and the international law rules of waiver and acquiescence, both manifestly applicable to arbitral proceedings under Annex VII to UNCLOS. There may also be a stage when bringing such a challenge would impinge on the fair administration of justice and the principles of the equality of the Parties. Such rules […] bar a State from exercising rights that it failed to assert promptly, i.e. that it consciously refrained from exercising within a reasonable period of time.
Decision on Challenges, paras. 98-99
On the specific Challenge to Professor McRae and Judge Wolfrum, the Tribunal decided:
101. Having carefully reviewed the text of the IDI Declaration and the circumstances of its adoption, the Arbitral Tribunal concludes that Professor McRae’s and Judge Wolfrum’s votes in favour of the IDI Declaration raise justifiable doubts as to their impartiality in this arbitration. Accordingly, the Challenges must be upheld.
Decision on Challenges, paras. 101, 103
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103. For the reasons set out above, the three unchallenged Members of the Arbitral Tribunal, with Judge Gudmundur Eiriksson presiding, by two votes to one, uphold the Challenges to Professor McRae and Judge Wolfrum.
Sir Christopher Greenwood attached a Dissenting Opinion (6 March 2024), agreeing with the substantive standards to be applied in deciding on challenges in this case, but disagreeing with its application to the facts of the case. Greenwood posits “The IDI Declaration addressed different events, occurring later in time, and of a fundamentally different character from those with which the Tribunal is concerned. Nor do the rules and principles of international law to which the Declaration refers have any bearing on the decisions which the Tribunal will have to take in the present case.” [Dissenting Opinion, para. 10]. Greenwood also concludes that the challenge was untimely, given Russia’s awareness of the IDI Declaration since Spring of 2022 and its failure in inquire on arbitrators voting records if Russia viewed the IDI Declaration as relevant to proceedings [Dissenting Opinion, paras. 15-19].
De Maribus 