## Facts

- Hrvatska Elektroprivreda d.d. (HEP), Croatia’s national electricity company, brought an ICSID arbitration against the Republic of Slovenia arising from an investment dispute involving the Krško Nuclear Power Plant.
- The claims invoked treaty and agreement-based obligations connected to the project.
- The tribunal was constituted under the ICSID Convention and the ICSID Arbitration Rules, with proceedings administered by ICSID.
- Slovenia had been represented for a substantial period by an existing legal team.
- Shortly before a scheduled oral hearing, Slovenia added David Mildon QC as additional counsel.
- Mildon and the presiding arbitrator, David A.R. Williams QC, were members of the same barristers’ chambers in London and had an established professional association.
- HEP objected to Mildon’s participation, arguing that the late addition of counsel with this relationship risked undermining the appearance of impartiality and equality between the parties.
- The tribunal was asked to determine whether Mildon could participate in the forthcoming stages of the arbitration.

## Issues

1. Whether an ICSID tribunal has authority to regulate party representation and exclude a particular counsel to protect the integrity and fairness of the proceedings.
2. Whether the late appointment of counsel closely professionally affiliated with the presiding arbitrator creates an appearance of partiality or inequality sufficient to justify exclusion.
3. How to balance party autonomy in selecting counsel against the tribunal’s duty to ensure a fair process and the appearance of impartial adjudication.

## Decision

- The tribunal held it has authority to regulate representation in the arbitration and, when necessary, to exclude counsel to preserve procedural fairness and the integrity of the process.
- The tribunal ordered that David Mildon QC could not participate in further stages of the proceedings.
- The tribunal permitted the arbitration to continue with Slovenia’s existing counsel and declined to alter the tribunal’s composition.

## Legal Principles

- An ICSID tribunal may exercise procedural authority, including inherent or implied powers, to manage the conduct of the proceedings when the applicable rules do not expressly address the situation.
- The right of a party to choose its counsel is not absolute and may be restricted to protect fairness, equal treatment, and confidence in the adjudicative process.
- The appearance of impartiality matters; affiliations between counsel and an arbitrator, particularly when introduced late, can warrant remedial measures to prevent reasonable doubts about fairness.
- Remedies should be tailored to the source of the perceived unfairness; where the concern arises from a late change in counsel rather than the tribunal’s appointment, exclusion of the newly added counsel may be an appropriate response.

## Conclusion

The tribunal barred a late-appointed counsel who shared chambers with the presiding arbitrator, holding that it could regulate counsel participation to protect fairness and the appearance of impartiality while allowing the case to proceed with the existing legal team and the tribunal unchanged.


Hrvatska Elektroprivreda d.d. v. Republic of Slov., ICSID Case No. ARB/05/24 (May 6, 2008)