From the various presentations and speakers’ tables of the VII National Congress of Judges and Arbitrators of the IPA, an interesting questioning and analysis arose regarding the content of Supreme Decree No. 091-2020-PCM, which approved the Regulations of Emergency Decree No. 020-2019, on the obligation to submit a Sworn Statement of Interests in the Public Sector, referring to arbitrators. Among the most important points, I point out the following:
The Regulation establishes that the Sworn Statement of Interests is an instrument of a public and mandatory nature that contains information referring to economic, contractual, professional, labor, corporate , and family ties, among others, of the arbitrators participating in arbitrations where the State is involved.
In greater detail, Article 3(g) of the Regulations specifies that such arbitrators may be natural and legal persons participating in ad hoc arbitrations and institutional arbitrations, as the case may be. In the case of legal entities, the obligation to submit the Sworn Statement of Interests is materialized through their legal representative and extends to the arbitrators appointed by them.
Subsequently, Article 10 of the Regulations regulates everything related to the Sworn Statement of Interests for arbitrators, specifying that when they participate in arbitrations in which the State is a party, the sworn statement of interest must be submitted at the beginning of the arbitration, which is a requirement for the acceptance of the arbitrator.
The entity involved in the arbitration as a responsible party must report them through the Single Platform for Sworn Statement of Interests, and the arbitrator may submit the updated statement within fifteen days of the relevant event , and may also do so at the time of termination until the issuance of the arbitration award.
On the other hand, , it establishes that in case of non-compliance with the requirement to submit the sworn statement of interests or if it contains inaccurate or false information, and provides that the arbitrator shall be subject to challenge in the arbitration process. The challenge may only be applicable to appointments made after the regulations come into force.
Regarding violations and penalties, the regulation categorizes them as minor, serious , and very serious, as stipulated in Articles 15, 16 , and 17 respectively, considering the following behaviors as very serious: a) failure to comply with the requirement to submit the sworn statement of interests in accordance with Article 11.5 of Article 11 of the Regulations and b) submitting the sworn statement of interests with inaccurate or false information.
Subsequently, it regulates the Administrative Disciplinary Procedure, specifying in Article 18.1 that it will be in charge of each entity. The phases of the procedure, the authorities in charge of it , and the sanctions are those established by the rules that regulate the regime that corresponds to each regulated entity, without prejudice to the civil or criminal liability that may be applicable, as the case may be.
Likewise, paragraph 18.2 states that the procedure is initiated ex officio by the competent authority or as a consequence of a motivated request from the Office of Institutional Integrity, or by a complaint from a natural or legal person, and it should be mentioned that, according to the Fourth Final Complementary Provision, the infringements and sanctions of the regulation shall enter into force after six months from the day following the publication of the Regulation in the official newspaper El Peruano.
The facts committed prior to the entry into force of the Regulation will be governed by the substantive and procedural rules provided by the rules that regulate the regime of the obligor; without prejudice of the civil or criminal liability that may be applicable, as the case may be.
It is important to point out that the only Complementary Transitory Provision states that the arbitration proceedings in the process will have to be adapted to the provisions of the Emergency Decree and its Regulations at the stage they are in, with the exception of the challenge, which only applies to the appointment of arbitrators after the regulations are in force.
Following this order of ideas, it is worth asking ourselves: should arbitrators disclose in their affidavit all kinds of information regarding their economic, contractual, professional, labor, corporate , and family interests? I do not think so . In personal life there are many types of direct and indirect interests related to those links, there is no need to detail all of them . I think it will be enough if they contain relevant and pertinent information in relation to the specific case, i.e. only that which could generate a future conflict of interests for the same arbitration process, or in other words, that information that could lead to their recusal.
The arbitrator, as a consequence of his duty of impartiality and in order to ensure the transparency of the arbitration process, must as a rule include in his declaration of interests all information which, for him and for any impartial third party, may imply -in an ex-ante analysis- a conflict of interests. The standard of information to be provided should definitely be high for an arbitration process, but always respecting the independence and impartiality of what should be disclosed.
Now, from a criminal point of view, what happens when an arbitrator files a false or inaccurate affidavit, does he/she commit a crime or not? For many the answer is clear, they do not commit a crime but an administrative infraction for being a breach of the arbitration process that results in their recusal, more so if it is taken into account that such infraction will be subject to an administrative disciplinary process for its respective sanction, or even more clearly, to be removed from the arbitration process.
In any case, for those who consider that such conduct would not be criminal, they affirm that it is a moral infraction against the Code of Ethics of the Chamber or the respective Arbitration Center or a breach of the international rules of the IBA on Conflicts of Interest, and their conduct may be considered negligent, but not criminal. The greatest sanction, according to them, will be the professional and, above all, reputational discredit in the eyes of society, which may even remove him/her from the arbitration market, considering that the reputational reproach is often a more drastic and effective sanction than the criminal sanction itself.
Likewise, at a theoretical level, there are those who affirm that such conduct of the arbitrator would not pass the test of typicality, since it lacks the subjective element of the type, i.e. intentionality (classic malice); even more so if the trend of Contemporary Criminal Law promotes the decriminalization of conducts that could well be repressed and with sufficient rigor by a less intense way, the latter in a strict application of one of the principles that govern Criminal Law, the Principle of Subsidiarity or last ratio.
On the other hand, there are professionals who are of the opinion that filing a false or inaccurate affidavit does constitute a crime, since they attribute such action or omission to a probable intention of not disclosing decisive information that may exclude him/her from arbitration. In any case, they state that the arbitrator, like any other person, may commit crimes, as long as his conduct constitutes a crime, either by action or omission, and must submit to criminal justice as any other citizen.
Following this line, the issuance of an inaccurate or false affidavit would typify as a crime against the Administration of Justice in the modality of False declaration in administrative proceedings, provided for in article 411 of the Criminal Code, whose penalty ranges between one and four years of imprisonment.
In conclusion, the problem related to the inaccurate or false affidavit of interests filed by the arbitrators, will end up being defined at the level of casuistry, the most important issue is the issue of evidence to establish whether we are dealing with an administrative infraction or a crime.