Dealing With Bribery And Corruption In International Commercial Arbitration

International Arbitration Law Library, Volume 65 International commercial arbitration is by no means free from bribery and corruption. Although a plethora of legal scholarship clearly affirms this contention, a thorough study on the particularly important question of the authority and duty of international commercial arbitrators to investigate a suspicion or indication of bribery or corruption sua sponte ¬– that is, on their own initiative – has been surprisingly lacking. This important book fills this gap, inter alia, by locating sua sponte authority in the position of arbitral tribunals in establishing the facts of a case and ascertaining and applying the applicable normative standards. In addition to providing a comprehensive examination of how the issue of bribery and corruption is dealt with in contemporary international commercial arbitration, the book also highlights the role of arbitrators in global efforts to combat transnational commercial bribery and corruption. Among others, the following critical issues are thoroughly investigated: arbitrability of issues of public interests; intermediary contracts; role of arbitrators in the fact-finding process; party autonomy versus overriding mandatory rules; iura novit curia in international commercial arbitration in the context of bribery and corruption; notion of transnational (or ‘truly international’) public policy; arbitrators’ duty to act as guardians of international commerce; investigative tools available to arbitrators; dealing with manifestly recalcitrant parties; possible consequences of violating the obligation to sua sponte investigate; and the view from developing countries. The analysis leans primarily on Swiss law, as Switzerland is one of the most important jurisdictions in international commercial arbitration; Switzerland has also been involved in some of the most famous and controversial arbitration cases wherein bribery and corruption became an issue. However, the study also includes a comparative analysis of the relevant laws, jurisprudence, and doctrine of other major arbitration venues, particularly England, France, and Germany. Not only in the light it sheds on how and whether international commercial arbitrators have hitherto justified the trust States have placed in them regarding the protection of the public interests but also in the practical solutions it offers arbitrators faced with issues of bribery and corruption, this deeply researched book equips arbitration practitioners and arbitration institutions with a hitherto lacking in-depth analysis on the question of sua sponte investigation. It also provides invaluable insights on how this issue might affect the future, legitimacy and expansion of this dispute settlement mechanism. Outside the field of arbitration, the book also provides jurists, legal scholars, in-house counsel for companies doing transnational business and public officials with highly enlightening perspectives on the interaction between international commercial arbitration and public interests.

Descreve como a corrupção é julgada na arbitragem comercial internacional. Procura explicar porque não há uma uniformidade na política arbitral em relação à corrupção. Analisa casos relativos à corrupção e arbitragem. Examina a legislação sobre corrupção, assim como convenções internacionais relevantes.

In Addressing Corruption Allegations in International Arbitration, Brody K. Greenwald and Jennifer A. Ivers draw upon their experience in international arbitrations involving allegations of corruption to provide a comprehensive overview of the key issues that arise in these high-stakes cases.

Corruption is one of the main obstacles to sustainable development and has a significant negative impact on a country’s productivity. In this book, which reproduces the transcribed presentations and lively discussions at the 2019 Annual Conference of the Swiss Arbitration Association (ASA), four panels including internationally known arbitration practitioners, criminal lawyers and accountants exchange views on the causes, costs, and impacts of corruption not only on society but also on the arbitral process and the arbitral profession. Among the many facets of corruption, the contributors address the following: legal framework of corruption and applicable law; cost of corruption from an economic perspective; jurisdiction and the arbitrability of issues of corruption; aspects of corruption that are specific to arbitration in specific business sectors; cases involving corrupt arbitrators, experts, and witnesses; establishing correctness or incorrectness of suspicion of corruption; bringing issues of corruption before the parties; and judicial scrutiny of corruption-tainted arbitral awards at the setting aside and enforcement stage. The authors, all of them prominent in representing the full range of business sectors active in international arbitration, provide matchless practical guidance in dealing with challenges associated with corruption in arbitration. Among much else, they deal with ‘red flags’ likely to indicate suspicious relationships, effective strategies to employ when confronted with a corruption-tainted contract and reporting suspicion of corruption and the related risk of personal liability. All of this invaluable material will be greatly appreciated by practising arbitrators, corporate counsel, arbitration institutions, and concerned academics.

This volume presents national reports describing the legal instruments that are available to prevent the payment of bribes for acquiring contracts. Anti-corruption is one of the preeminent issues in the modern global commercial order and is tackled with the help of criminal law and contract law in different ways in different countries. The reports included in this volume, from very diverse parts of the world, represent a unique and rich compilation of court decisions, doctrinal discussions and a pool of suggested solutions. The central theme is the enforceability of three problematic types of contracts: the bribe agreement, whereby a bribe payer promises the agent of his business partner a personal benefit in exchange for favourable contract terms; the agreement between a bribe payer and an intermediary (a “bribe merchant”), where the latter offers his expertise to help funnel bribes to agents of the business partner; and finally, the contract between the bribe payer and his business partner which was obtained by means of bribery. The analysis is tailored toward commercial contracts, which can also include contracts with state-owned enterprises. The examination and comparison of international and national initiatives included in this volume advance the discussion on the most appropriate remedies in corruption cases, and show how to get past the boundaries of criminal, private and contract law.

This book offers an exciting overview of how the investor-state dispute settlement mechanism currently deals with allegations and/or evidence of fraud and corruption. It provides a detailed analysis of the legal framework under which arbitral tribunals usually operate in investment disputes involving allegations of illegality. Readers will find step-by-step examinations of the corruption and fraud arguments employed by arbitral tribunals in ten landmark ISDS cases, followed by a chapter summarizing the status quo on the topic. The final part of the book discusses the identified challenges of addressing illegality issues in investment arbitration and potential solutions, including the creation of a multilateral investment court.

"This collection of papers results from the proceedings of the 2002 Annual General Meeting of the ICC Institute of World Business Law."--Introduction.

Competence-competence and corruption have, for different reasons, been mainstays of international dispute resolution thought and practice for the longest time. In the last few years, their intersection has become increasingly important and problematic. These lectures seek to define the problem and to provide acceptable solutions where possible. They attempt to derive support from both a stringent dogmatic approach and pragmatic attention to real-life expectations and conduct. More so than in other areas of private international law, the intersection between the powers of the arbitrator and the illegality of the subject matter or the parties’ conduct poses a particular challenge. That challenge is to postulate proper solutions under the law, including principles of transnational or international law, to conduct which can take on a multiplicity of appearances owing to conflicting cultural understandings of what is and is not legal in commercial life. The statement that bribery and corruption offend transnational or international public policy does not relieve the arbitrator from the burden of scrutinizing that statement doctrinally and exploring its consequences in a period of ever-increasing globalization of economic activity and investment.

Over the past few decades, arbitration has become the number one mechanism to settle international investment and commercial disputes. As a parallel development, the international legal framework to combat economic crime became much stronger within the fields of foreign public bribery, private bribery, fraud and money laundering. With frequent allegations of criminal conduct arising in international arbitration proceedings, it is crucially important to consider how such claims can be proven. This book analyses relevant case law involving alleged criminal conduct within international arbitration and addresses the most pressing issues regarding applicable criminal law and evidence. It is an essential resource for practising lawyers and academics active in the field of international investment and commercial arbitration.

This is the first comprehensive study of corruption in international investment arbitration. The book considers the limited effectiveness of efforts to combat transnational corruption in international law and the emergence of international investment arbitration as a singular means foreffective control of corruption within the international legal order. The case law on corruption by investment tribunals is studied exhaustively, jurisprudential trends are identified, and reforms aimed at enhancing the effectiveness and fairness of investment arbitration as a mechanism to combatcorruption are proposed.Divided into three parts, part I focus on the phenomenon of corruption in foreign investment and attempts at its control through international law. Part II analyses the available case law in international investment arbitration dealing with corruption. Llamzon identifies nine distinct trendsemerging from the case law and provides a table summarizing the key areas of corruption decision-making and each relevant tribunal's approach, which is an invaluable tool for practitioners engaging in "live" issues of corruption within arbitral proceedings. Part III reflects on the implications ofthese trends for both the "supply" and "demand" sides of corruption in international law, and proposes a integrative framework of decision for corruption issues in international investment arbitration.