Arbitration is a widely used method of resolving commercial and investment disputes globally, valued for its neutrality, confidentiality, and procedural flexibility. Arbitrators play a key role in this system, with their integrity, independence, and competence being essential to the arbitral process.
Nonetheless, with this authority comes responsibility. Arbitrators are generally protected from civil suits under arbitral immunity. However, criminal liability is treated differently. As arbitration intersects with public policy, international commerce, and state interests, the possibility of arbitrators facing criminal sanctions has become increasingly relevant.
Criminal Conduct That May Give Rise to Liability
Arbitrators generally have broad immunity from civil liability for actions performed in their role. However, this immunity does not cover criminal conduct. Arbitrators may face liability when they commit actions that are criminal offences, such as bribery, corruption, fraud, or deliberate misconduct. For instance, if an arbitrator solicits or accepts a bribe to render a favourable decision, such conduct would violate ethical norms and constitute a prosecutable crime under national anti-corruption laws. Additionally, criminal liability can occur if an arbitrator intentionally falsifies documents or engages in fraudulent misrepresentation to influence arbitral proceedings. Different national legal systems address this issue in various ways, but many indicate that criminal behaviour does not fall within the scope of arbitral immunity.[1] Consequently, although establishing criminal liability for arbitrators has a high threshold, it highlights the importance of maintaining rigorous standards of integrity and accountability in arbitral practice.
Noteworthy Cases
Bernard Tapie Arbitration
The Tapie case arose from a dispute over the 1993 sale of Adidas, once owned by French businessman Bernard Tapie. To resolve the dispute, the French government agreed in 2008 to settle the matter through private arbitration, which controversially awarded Tapie EUR 240 million, as well as EUR 45 million in moral damages.[2]
The decision provoked widespread public and political criticism due to perceived favouritism and lack of transparency, leading to its annulment in 2015 by a Paris Court of Appeal on grounds of fraud and requiring Tapie to repay EUR 404 million.[3]
The investigations that followed uncovered that an arbitrator, Pierre Estoup, colluded with businessman Bernard Tapie and his legal team to favour Tapie in the arbitration. The French Cour de Cassation ruled that hiding this close relationship, which raised doubts about the arbitrator’s impartiality, was fraud. The court stressed that such deceit to secure a party’s favourable outcome constituted a fraudulent manipulation of the arbitral process.[4]
This case showed that criminal liability may extend beyond arbitrators, triggering investigations by French authorities into Tapie himself, his legal counsel, and Christine Lagarde (former Minister of Finance and head of the IMF).[5]
This finding indicates that arbitrators can face criminal charges for fraud, corruption, or collusion. Despite arbitration being a private and consensual process, abuse of authority or manipulation, especially when involving public funds or state interests, can lead to criminal liability.
Sulu Heirs v. Malaysia
The dispute revolves around an 1878 Agreement involving the Sultan of Sulu, who once governed parts of the Philippines and the present-day Malaysian island of Borneo, and two European colonists.[6] The Sultan either ceded or leased exploitation rights for an annual compensation. The 1878 Agreement stipulated that any disputes would be resolved by the British Consul-General in Borneo. Over time, the colonists’ rights were passed on to Malaysia, which continued to pay annual compensation to the Sultan’s descendants until 2013.[7]
Four years later, the UK government declined to appoint a representative for the Consul-General role as stipulated by the 1878 Agreement. Consequently, the heirs initiated arbitration proceedings and petitioned the Madrid Superior Court to appoint an arbitrator. In 2019, Dr. Gonzalo Stampa was appointed as the sole arbitrator and selected Spain as the seat of arbitration, proceeding without Malaysia’s participation.[8] In May 2020, Dr. Stampa issued a Preliminary Award on Jurisdiction and Applicable Substantive Law.[9]
However, the Madrid Superior Court then ruled that Malaysia had not been properly served under Spanish rules for actions against states.[10] Despite this ruling, Dr. Stampa proceeded with the arbitration, issuing Procedural Orders asserting his continued authority and relocating the arbitration seat from Spain to France.[11]
Finally, in February 2022, Dr. Stampa issued a Final Award of nearly USD 15 billion in compensation, which strongly criticised the Madrid Superior Court’s actions as improper judicial interference that violated arbitral independence.[12]
However, in June 2023, the Paris Court of Appeal annulled the recognition of the Preliminary Award and suspended enforcement of the Final Award pending Malaysia’s application to set it aside.[13]
The story for Dr. Stampa did not end there. The Spanish Public Prosecutor and the Malaysian government then charged Mr. Stampa with grave criminal contempt and unauthorised professional conduct, alleging that he wilfully disregarded multiple binding court orders issued by Spanish authorities.[14] This proceeding resulted in Dr. Stampa receiving a six-month prison sentence and a one-year suspension from practising as an arbitrator.[15]
Al Misnad v. SEG Qatar
The dispute originated from a construction contract between Mr. Al Misnad and SEG Qatar concerning the Dana and Sarah Towers project in Doha. Initially, arbitration proceedings commenced under the Qatar International Centre for Conciliation and Arbitration (QICCA). However, the arbitral tribunal decided to shift the arbitration to an ad hoc proceeding seated in Tunisia. This decision was challenged in the Qatari courts as well as before QICCA, resulting in the institution appointing a new panel of three arbitrators.[16]
The second tribunal in Qatar awarded USD 7 million against SEG Qatar. Meanwhile, the ad hoc arbitration in Tunisia continued, finally ordering Mr. Al Misnad to pay USD 26 million.[17]
During the enforcement proceedings of the Tunisian Award, the Paris Court of Appeal found that altering the type and seat of the arbitration breached international due process standards.[18] In late 2018, the Qatari Lower Criminal Court then convicted the three arbitrators in the Tunisian-seated arbitration for criminal activities against Mr. Al Misnad, sentencing each to three years’ imprisonment. The court deemed arbitrators as public servants under Qatari law, thus holding them criminally liable for their actions.[19]
Wintershall v. Russian Federation
This legal dispute centres on the alleged expropriation of Wintershall’s assets in Russia. After the 2022 invasion of Ukraine, Wintershall announced its departure from the Russian market in January 2023, with estimated losses of €5.3 billion. These losses stemmed from Russian presidential decrees transferring Wintershall’s stakes in joint ventures to new Russian entities.[20] Therefore, Wintershall began two arbitration cases against Russia in late 2024, citing the Germany-USSR investment treaty and the Energy Charter Treaty. It claims Russia violated its investment rights and seeks compensation for the expropriated assets.[21]
However, the Russian government challenged the legitimacy of these international arbitrations. In April 2025, the Moscow Arbitration Court approved interim measures requested by the Russian Prosecutor General’s Office. These measures ordered Wintershall, its legal counsel Aurelius Cotta, and the appointed arbitrators to suspend all arbitration proceedings until a final decision is reached on the matter.[22]
Furthermore, the Russian authorities asserted that the arbitration panel, seated in The Hague, was biased due to its location in an “unfriendly” country and claimed that the arbitrators did not disclose potential conflicts of interest.[23] Consequently, this led to the resignation of the arbitrator nominated by Russia.[24] As of May 2025, the arbitration proceedings have been suspended in accordance with the interim measures imposed by the Russian court.
Conclusion
As demonstrated by recent cases, arbitral immunity is not absolute, especially in cases of alleged criminal misconduct. These cases show that arbitrators can face serious consequences in performing their functions. Criminal liability reminds us that with great authority comes great accountability, regardless of whether this is justified.
[1] R. Mullerat, The liability of Arbitrators: a survey of current practice (21 September 2006), p. 8.
[2] Herbert Smith Freehills, Paris Court of Appeal orders the retraction of an award made where one arbitrator lacked independence: the ongoing Tapie saga (4 March 2015), available at: https://www.herbertsmithfreehills.com/notes/arbitration/2015-03/paris-court-of-appeal-orders-the-retraction-of-an-award-made-where-one-arbitrator-lacked-independence-the-ongoing-tapie-saga.
[3] J. Le Brusq, The Tapie saga: Paris successfully passed the test (1 September 2016), available at: https://arbitrationblog.kluwerarbitration.com/2016/09/01/the-tapie-saga-paris-successfully-passed-the-test/.
[4] J. Le Brusq, The Tapie saga: Paris successfully passed the test (1 September 2016), available at: https://arbitrationblog.kluwerarbitration.com/2016/09/01/the-tapie-saga-paris-successfully-passed-the-test/.
[5] J. Le Brusq, The Tapie saga: Paris successfully passed the test (1 September 2016), available at: https://arbitrationblog.kluwerarbitration.com/2016/09/01/the-tapie-saga-paris-successfully-passed-the-test/. See also BBC, Tapie affair: Background to case (22 July 2016), available at: https://www.bbc.com/news/world-europe-35126472.
[6] B. Carreño, C. Devereux, Spain charges arbitrator who awarded $15 billion to sultan’s heirs in Malaysia dispute (12 December 2023), available at: https://www.reuters.com/world/europe/spain-charges-arbitrator-who-awarded-15-billion-sultans-heirs-malaysia-dispute-2023-12-12/.
[7] G. Nardell, Carry on Regardless? The Sulu Case, Arbitrator Authority and Principles of Recognition (3 February 2024), available at: https://arbitrationblog.kluwerarbitration.com/2024/02/03/carry-on-regardless-the-sulu-case-arbitrator-authority-and-principles-of-recognition/.
[8] G. Nardell, Carry on Regardless? The Sulu Case, Arbitrator Authority and Principles of Recognition (3 February 2024), available at: https://arbitrationblog.kluwerarbitration.com/2024/02/03/carry-on-regardless-the-sulu-case-arbitrator-authority-and-principles-of-recognition/.
[9] Sulu heirs v. Malaysia, Preliminary Award on Jurisdiction and Applicable Substantive Law dated 25 May 2020.
[10] Sulu heirs v. Malaysia, Judgment of the High Court of Justice of Madrid dated 29 June 2021.
[11] G. Nardell, Carry on Regardless? The Sulu Case, Arbitrator Authority and Principles of Recognition (3 February 2024), available at: https://arbitrationblog.kluwerarbitration.com/2024/02/03/carry-on-regardless-the-sulu-case-arbitrator-authority-and-principles-of-recognition/.
[12] Sulu heirs v. Malaysia, Final Award dated 28 February 2022.
[13] Judgment of the Paris Court of Appeal 21/21386 dated 6 June 2023.
[14] Minister A. Othman Said, Madrid Court of Appeal Confirms Sulu Arbitrator Gonzalo Stampa’s Conviction for Contempt of Court (18 May 2024), available at: https://www.kln.gov.my/web/guest/-/madrid-court-of-appeal-confirms-sulu-arbitrator-gonzalo-stampa-s-conviction-for-contempt-of-court.
[15] T. Jones, Spanish arbitrator convicted over Malaysia mega-award (8 January 2024), available at: https://globalarbitrationreview.com/article/spanish-arbitrator-convicted-over-malaysia-mega-award. See also B. Castro, Arbitrator jail sentence and ban raises questions in ‘highly unusual’ case (19 January 2024), available at: https://www.lawgazette.co.uk/news/arbitrator-in-149bn-case-jailed-following-intervention-by-malaysia/. See also Minister A. Othman Said, Madrid Court of Appeal Confirms Sulu Arbitrator Gonzalo Stampa’s Conviction for Contempt of Court (18 May 2024), available at: https://www.kln.gov.my/web/guest/-/madrid-court-of-appeal-confirms-sulu-arbitrator-gonzalo-stampa-s-conviction-for-contempt-of-court.
[16] F. M. Serrano et al., International Arbitration Newsletter – February 2021, Regional Overview: Europe (26 February 2021), available at: https://www.garrigues.com/en_GB/new/international-arbitration-newsletter-february-2021-regional-overview-europe.
[17] F. M. Serrano et al., International Arbitration Newsletter – February 2021, Regional Overview: Europe (26 February 2021), available at: https://www.garrigues.com/en_GB/new/international-arbitration-newsletter-february-2021-regional-overview-europe.
[18] F. M. Serrano et al., International Arbitration Newsletter – February 2021, Regional Overview: Europe (26 February 2021), available at: https://www.garrigues.com/en_GB/new/international-arbitration-newsletter-february-2021-regional-overview-europe.
[19] H. Yu, Reconsidering the Legal Basis of Arbitrator’s Immunity Through the Lens of the Al Misnad Case (Journal of Business Law, 2022).
[20] RuSecrets, Wintershall Dea initiates two arbitration proceedings against Russia (2 October 2024), available at: https://rusecrets.com/articles/wintershall_dea_initiates_two_arbitration_proceedings_against_russia.
[21] P. Nacimiento, A. Tussupov, Geopolitics and Russia-related disputes (27 March 2025), available at: https://www.herbertsmithfreehills.com/insights/reports/inside-arbitration-issue-19/geopolitics-and-russia-related-disputes.
[22] Moscow Arbitration Court Case No. А40-92702/25-56-674, Order dated 29 April 2025.
[23] A. Boës, Russian Court issues injunction against Claimant, Arbitrators and Counsel in Energy Treaty dispute (8 May 2025), available at: https://kdb.legal/en/russian-court-issues-injunction-against-claimant-arbitrators-and-counsel-in-energy-treaty-dispute/.
[24] A. Ross, Gharavi resigns as state appointee in treaty cases against Russia (22 May 2025), available at: https://globalarbitrationreview.com/article/gharavi-resigns-state-appointee-in-treaty-cases-against-russia
