Title:
Corruption in international trade and commercial arbitration
Personal Author:
Series:
International arbitration law library
Publication Information:
The Hague, The Netherlands : Kluwer Law International, 2004
ISBN:
9789041122360
Available:*
Library | Item Barcode | Call Number | Material Type | Item Category 1 | Status |
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Searching... | 30000010127378 | K2400 S29 2004 | Open Access Book | Book | Searching... |
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Summary
Summary
Issues of corruption turn up with disturbing frequency in commercial arbitration. Yet there is no uniformity in arbitral practice to tackle this phenomenon, despite a constant chorus of condemnation from all quarters. This important book attempts to explain the discrepancy between the mountain condemnation of corruption in international trade and public procurement and the persistent resistance to such condemnation. It specifically describes how corruption uses duplicity in practice, and how such practice challenges the imperativeness of condemnation.
In the process of developing theory in this area, the book analyzes relevant cases and other legal materials, and thus provides both theoretical and practical guidance in such matters as the following: the arbitrability of corruption matters; the validity of arbitration agreements contained in corruption contracts; the standard and extent of proof that the arbitrator should apply in connection with corruption allegations; the various presumptions of corruption; the principle of party autonomy and corrupt relations; the applicability of national mandatory laws prohibiting corruption in international arbitration; the application of transnational public policy condemning corruption; the effect of nullity of corrupt relations; and, the degree of judicial review of arbitral awards rulings on corruption allegations. In addition to its matchless value as a guide to law and practice in the field, Corruption in International Trade and Commercial Arbitration is unsurpassed in the wealth of reference material it provides. Important cases from many countries are analyzed with in-depth attention to the circumstances surrounding them, and many national laws (including those of Arab countries) and international agreements are also examined. The entire work is superbly cross-referenced to indexes and a rich bibliography. This book will be of immeasurable value to arbitration practitioners and scholars, corruption scholars and specialists in governmental and non-governmental organizations, officials and experts concerned with money laundering, civil servants in charge of national accountability or transparency bureaus, and law enforcement officials and judges charged with criminal justice procedure in matters of corruption.Table of Contents
Foreword | p. xvii |
Preface | p. xxi |
Introduction | p. xxiii |
Chapter 1 Judging Corruption in Arbitration | p. 1 |
I. A Brief Outline of the Underlying Paradigm of Arbitral Decision-Making | p. 1 |
II. The Main Attitudes In Evaluating Corruption | p. 8 |
A. The Repressive Tendency | p. 9 |
B. The Indifferent Tendency | p. 19 |
III. Concluding Remarks | p. 24 |
Chapter 2 Arbitrability of Public Procurement-Related Matters | p. 27 |
I. Overview | p. 27 |
II. Arbitrability of Public Procurement-Related Matters | p. 29 |
A. The Legal Basis of the Non-Arbitrability of Public Procurement-Related Matters | p. 29 |
B. The Arbitrator's Initiative In Raising The Non-Arbitrability of Public Procurement-Related Matters | p. 33 |
C. Applicable Law on the Question of Arbitrability of Public Procurement-Related Matters | p. 36 |
III. Concluding Remarks | p. 40 |
Chapter 3 Corruption and the Validity of the Arbitration Agreement | p. 43 |
I. Overview | p. 43 |
II. Contract of Corruption and the Validity of the Arbitration Agreement | p. 46 |
A. The Westacre Case | p. 47 |
B. The Historical Context of Westacre | p. 54 |
C. Measuring The Degree of Offensiveness of Coruption | p. 55 |
D. The Quality of the Award | p. 57 |
E. Separability Between Indifference to Corruption and Repression | p. 57 |
III. Validity of an Agreement to Arbitrate Corruption Matters | p. 58 |
A. ICC Case No. 1110 of 1963: The Lagergren Award | p. 59 |
B. Arbitral Disengagement from Adjudicating Corruption Contracts | p. 65 |
IV. Public Procurement Contracts Obtained by Bribery | p. 69 |
A. Arbitrability of Corruption Matters in Public Procurement Contracts | p. 69 |
B. Corruption as Defect of Consent to the Public Procurement Contract | p. 76 |
V. Concluding Remarks | p. 87 |
Chapter 4 Evidence of Corruption | p. 89 |
I. Evidence in Arbitration | p. 89 |
A. Arbitral Freedom in Determining Rules of Evidence | p. 89 |
B. Burden and Standard of Proof | p. 92 |
C. Direct and Circumstantial Evidence | p. 93 |
D. Presumptions | p. 94 |
E. Witness Testimony | p. 96 |
F. Documentary Evidence | p. 97 |
G. The Arbitration Evidentiary Predicament | p. 98 |
II. Evidence of Corruption in Arbitration | p. 100 |
A. Outline of the Potentially Relevant Elements of Facts in a Corrupt Scheme | p. 101 |
B. Standard of Proof in Corruption Matters | p. 102 |
C. Extent of Proof in Bribery Matters | p. 106 |
D. The Arbitration Evidentiary Predicament and the Struggle Against Secrecy | p. 116 |
III. Concluding Remarks | p. 157 |
Chapter 5 Choice-of-Law Problems and Corruption | p. 159 |
I. Overview of the Doctrine of Party Autonomy | p. 159 |
A. Party Autonomy in National Law | p. 160 |
B. Party Autonomy in International Arbitration | p. 162 |
II. Corruption and the a priori Limits on the Choice of the Applicable Law | p. 167 |
A. The Choice of a Neutralizing Law | p. 168 |
B. The Rule of Validation Requirement | p. 178 |
III. Concluding Remarks | p. 186 |
Chapter 6 Application of Mandatory Laws Prohibiting Corruption | p. 189 |
I. Describing Anti-corruption Laws | p. 190 |
A. Anti-Corruption Laws Enacted by Importing Countries | p. 190 |
B. Anti-Corruption Laws Enacted by Exporting Countries | p. 201 |
C. An Inquiry Into The Mandatory Nature of Anti-Corruption Laws | p. 230 |
II. Applicability of Anti-Corruption laws In International Commercial Arbitration | p. 232 |
A. The Taking Into Consideration of Foreign Mandatory Anti-Corruption Laws | p. 234 |
B. The Direct Application of Foreign Mandatory Anti-Corruption Laws | p. 254 |
III. Concluding Remarks | p. 275 |
Chapter 7 Application of Universal Values Prohibiting Corruption | p. 277 |
I. "Transnational" Public Policy | p. 278 |
A. Origins: The Notion of Societas Mercatorum | p. 278 |
B. Definition of Transnational Public Policy | p. 281 |
C. Function of Transnational Public Policy | p. 282 |
D. Critiques | p. 283 |
E. The Application of the Universal Moral Rule | p. 285 |
F. The Homology of the Moral Rule and Transnational Public Policy | p. 286 |
G. Identifying Transnational Public Policy | p. 287 |
II. The Foundation of the Universal Prohibition of Corruption | p. 289 |
A. The Prohibition of Corruption is Essential | p. 289 |
B. Prohibition of Corruption is Widely Shared | p. 290 |
C. The Role of the Global Effort to Combat Corruption in Establishing Large Consensus | p. 291 |
III. The Prohibition of corruption and the Practice of Dual Intentionality | p. 310 |
A. Describing The Underlying Dynamics of Corrupt Relations | p. 310 |
B. Definition of Dual Intentionality | p. 320 |
C. The Legal Effect of the Practice of Dual Intentionality on the Prohibition of corruption | p. 325 |
IV. The Prohibition of Corruption and Dual Intentionality in Arbitration | p. 345 |
A. The Degree of Proliferation of Corruption and Arbitration | p. 344 |
B. Intermediation in Arbitration | p. 348 |
C. Dual intentionality in Arbitration | p. 349 |
V. Concluding Remarks | p. 353 |
Chapter 8 The Sanction of Corruption | p. 355 |
I. Nullity of Corrupt Relations | p. 355 |
A. Absolute Nullity | p. 355 |
B. Who Invokes Nullity? | p. 357 |
C. The Effect of Nullity | p. 366 |
II. Alternative Sanctions of Corruption | p. 376 |
A. Ascertaining Absence of Services | p. 376 |
B. Invoking the Intermediary's Fraudulent Presentation of Evidence | p. 380 |
III. Concluding Remarks | p. 388 |
Chapter 9 Corruption, Public Policy and Judicial Review of Awards | p. 391 |
I. Balancing Award Finality and Public Policy | p. 391 |
II. Minimal Judicial Review | p. 394 |
A. Overview | p. 394 |
B. Minimal Judicial Review and Corruption | p. 397 |
III. Maximal Judicial Review | p. 405 |
A. Overview: The Case of France | p. 408 |
B. Maximal Judicial Review and Corruption | p. 405 |
IV. The Contextual Approach to Judicial Review | p. 412 |
A. Contextual Review: The Case of England | p. 412 |
B. Contextual Judicial Review and Corruption | p. 413 |
IV. Concluding Remarks | p. 420 |
Conclusion | p. 423 |
Bibliography | p. 429 |
I. Case Law | p. 429 |
1. Arbitral Awards | p. 429 |
2. National Case Law | p. 430 |
II. National Law Materials | p. 432 |
1. National Laws Pertaining to Corruption | p. 432 |
2. National Documents | p. 435 |
III. International Documents | p. 436 |
1. United Nations | p. 436 |
2. OECD | p. 438 |
3. Council of Europe | p. 438 |
4. World Bank and International Monetary Fund | p. 439 |
5. World Trade Organization | p. 441 |
6. Organization of American States | p. 441 |
7. Transparency International | p. 441 |
8. International Chamber of Commerce | p. 442 |
9. International Law Association | p. 442 |
10. Miscellaneous | p. 442 |
IV. Institute of International Law | p. 442 |
V. Courses at the Hague Academy of International Law | p. 443 |
VI. Collective Works | p. 443 |
VII. Books | p. 446 |
VIII. Articles | p. 452 |
Subject Index | p. 471 |
Index of Arbitration Cases Dealing with Corruption | p. 483 |