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Vol 25 No 2 Feb/March 2020

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Corruption in International Arbitration

ISBN13: 9780854902460
Published: June 2018
Publisher: Wildy, Simmonds and Hill Publishing
Country of Publication: UK
Format: Hardback
Price: £65.00

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Corruption represents a great menace to national and international development. It jeopardizes democracy, human rights, and social justice. Consequently, corruption is vehemently abhorred and denunciated by members of the international arbitration arena.

Unfortunately, while these players purport repugnance towards corruption and do not condone corrupt acts, a misplaced distrust of the arbitral process, as a proper dispute resolution system, has arisen.

Indisputably, corruption’s involvement in arbitration is far from novel. Nonetheless, there remains a lack of uniformity among arbitral tribunals on how to tackle corruption. The core issues causing said divergence include: (i) arbitrability and admissibility of corruption issues; (ii) the burden of proof and the standard of proof; (iii) sua sponte arbitrator investigation and inquiry into corruption; (iv) disclosing corruption to arbitral institutions and public authorities; (v) and proper judicial review of an arbitral award when the legality of the award is challenged on the basis of corruption.

This study delves into these controversial concerns and analyses practical solutions within the context of theory and practice. Further, this study scrutinizes commercial and investment-treaty arbitration cases, national and international court judgments, international conventions, national statutes, and other materials exploring corruption and arbitration.

Wildy, Simmonds and Hill, Arbitration and Alternative Dispute Resolution
CHAPTER I Corruption and Arbitration;
1. Corruption as an Increasing Concern in International Arbitration;
(a) Corruption in Underlying Contract
i) Is the Main Contract Null and Void?;
ii) Is the Arbitration Agreement Null and Void?;
(b) Corruption in the Arbitral Process ;
i) Corrupt Arbitrators;
ii) Corrupt Witnesses;
iii) Fraud in the Arbitration Process;
(c) Challenges to Arbitral Awards On the Basis of Corruption;
2. Conclusion;
CHAPTER II Arbitrability, Separability and Competence-Competence Doctrines;
1. The Doctrine of Arbitrability ;
a) The Doctrine of Arbitrability;
b) Arbitrability of Corruption;
2. The Doctrine of Separability;
a) The Doctrine of Separability;
b) The Doctrine of Separability in the Face of Corruption Allegations;
i) Importance of the Challenged Contract;
ii) Offensiveness of Corruption Allegations;
3. The Principle of Competence – Competence;
a) The Doctrine of Competence – Competence (Kompetenz -Kompetenz);
b) The Competence – Competence Doctrine in the face of Corruption Allegations;
4. Conclusion;
CHAPTER III Evidence of Corruption in International Arbitration;
1. Proving Corruption in International Arbitration;
A. General Information about the Burden of Proof and Standard of Proof;
B. General Approach to the Burden of Proof and Standard of Proof in International Arbitration ;
a) Laws and Rules Applicable to the Burden of Proof and Standard of Proof ;
b) The Burden of Proof and Standard of Proof in International Arbitration Practice;
i) The Heightened Standard of Proof;
ii) Lower Standard of Proof ;
iii) Conviction Intimate (Inner Conviction);
C. Causation;
2. Evidence in International Arbitration in the Face of Corruption;
a) Applicable Rules of Evidence in International Arbitration;
b) Evidentiary Materials;
i) Documentary Evidence;
ii) Fact Witnesses;
iii) Expert Witnesses;
c) Arbitrators’ Discretionary Authority Regarding Admissibility and Assessment of Evidence;
i) Admissibility and Assessment of Evidence Submitted by the Parties;
ii) Admissibility and Assessment of Evidence Obtained in Parallel Proceedings;
3. Conclusion;
CHAPTER IV The Powers and Duties of Arbitrators;
1. General Powers and Duties of Arbitrators;
2. Arbitral Investigation of Corruption Allegations and Suspicions;
a) Arbitrators: Servant of the Parties vs. Servant of the Truth;
b) The Arbitrator’s Rights (Obligations) to Probe Into Corruption Sua Sponte: Ultra Vires / Ultra Petita v. International Public Policy;
c) Reporting Corruption to the Arbitral Institution and Public Authorities;
3. Conclusion;
CHAPTER V Corruption, Public Policy and the Standard of Judicial Review;
1. The Competing Policies: Public Policy Exception vs. Pro-Enforcement Policy;
2. The Standard of the Judicial Review;
a) Minimum Judicial Review;
i) Minimum Judicial Review in Switzerland and the United States;
(aa) Minimum Judicial Review in Switzerland;
(bb) Minimum Judicial Review in the United States;
ii) Exceptions to the Application of Minimum Judicial Review: Examination of the Comprehensive Approach to Reviewing Awards;
b) Maximum Judicial (Non-Deferential) Review;
c) Contextual Judicial Review;
3. Conclusion;
I. Case Law;
1. Arbitral Awards;
2. National Case Law;
2.1. American Case Law
2.2. English Case Law;
2.3. French Case Law;
2.4. Swiss Case Law;
2.5. Australian Case Law;
2.6. Pakistani Case Law;
2.7. Singapore Case Law;
II. National Laws & Institutional Rules;
1. National Laws;
2. Institutional Rules;
III. International Documents;
1. Treaties & Legislation;
2. United Nations;
3. Transparency International;
IV. Books & Collective Works;
1. Books;
2. Collective Works;
V. Articles & Blogs;
VI. News & Magazines