SLOVENIA Law and Practice Contributed by: Vesna Cukrov and Veronika Cukrov, Law Firm Cukrov (Odvetniška družba Cukrov o.p., d.o.o.)
4.4 Challenge and Removal of Arbitrators The Slovenian Arbitration Act contains specific provi - sions governing the challenge of arbitrators. A party may challenge an arbitrator if circumstances exist that give rise to justified doubts as to the arbitrator’s independence or impartiality. An arbitrator must also disclose any circumstances that could affect their independence or impartiality from the time of their appointment and throughout the arbitral proceedings. A party may challenge an arbitrator only if it becomes aware of such circumstances after the arbitrator’s appointment, unless the parties have agreed other - wise. The challenge must be submitted in accordance with the procedure agreed by the parties. If the chal - lenge is unsuccessful under the agreed procedure, the party may request the competent court to decide on the challenge. These domestic provisions do not apply to investment treaty arbitration under the ICSID Convention, where challenge and disclosure are instead governed by the ICSID Arbitration Rules; nonetheless, ICSID practice involving Slovenia demonstrates the type of circum - stance disclosure obligations are understood to cover. In Ascent Resources Plc and Ascent Slovenia Ltd v Republic of Slovenia , the claimant-appointed arbitra - tor, Klaus Reichert, had previously presided over the tribunal in Rockhopper Exploration plc and others v Italian Republic , in which the tribunal unanimously found Italy liable for unlawful expropriation arising from an environmentally motivated ban on hydro- carbon extraction, awarding approximately EUR190 million. No challenge to the appointment is recorded, and the tribunal, with Reichert sitting, unanimously rejected the claim in its entirety. The case suggests that prior appointments or findings in related disputes do not alone give rise to justified doubts as to inde - pendence or impartiality, and that tribunal composi - tion is not, on its own, predictive of outcome. 4.5 Arbitrator Requirements Under Slovenian law, arbitrators are required to be independent and impartial. The Slovenian Arbitration Act provides that a person may act as an arbitrator only if there are no circumstances that could give rise
to justified doubts regarding their independence or impartiality. An arbitrator must disclose, from the time of appoint - ment and throughout the arbitral proceedings, any circumstances that may affect their independence or impartiality. This duty of disclosure is a continu - ing obligation and applies to any potential conflicts of interest that arise during the proceedings.
5. Jurisdiction 5.1 Challenges to Jurisdiction
The principle of competence-competence applies in Slovenia. Under the Slovenian Arbitration Act, an arbi - tral tribunal may rule on its own jurisdiction, including on objections concerning the existence or validity of the arbitration agreement. An arbitration agreement contained in a contract is treated as separate from the underlying contract, meaning that a challenge to the validity of the main contract does not, by itself, affect the arbitral tribunal’s jurisdiction. The arbitral tribunal may therefore determine whether a valid arbitration agreement exists and whether it has jurisdiction to decide the dispute. In the case of Ascent Resources Plc and Ascent Slo- venia Ltd v Republic of Slovenia (before an ICSID tri - bunal), the Republic of Slovenia also challenged the tribunal’s jurisdiction; however, all jurisdictional objec - tions were denied. The Tribunal confirmed its jurisdic - tion over the totality of the claimants’ claims under the ECT. This sequencing is significant: the tribunal first con - firmed its jurisdiction and only then proceeded to reject the claim on the merits, rather than declining jurisdic - tion outright. Jurisdictional objections raised by EU member states in ECT arbitrations frequently include a so-called intra-EU objection, based on the Court of Justice of the European Union’s rulings in Achmea (Case C-284/16) and Komstroy (Case C-741/19), which held that the ECT’s arbitration mechanism does not apply as between EU member states and inves - tors from other member states.
864 CHAMBERS.COM
Powered by FlippingBook