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.
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Verlagsort
Zielgruppe
Maße
Höhe: 229 mm
Breite: 152 mm
Gewicht
ISBN-13
978-0-85490-246-0 (9780854902460)
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Schweitzer Klassifikation
INTRODUCTION
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
CONCLUSION
BIBLIOGRAPHY
I. Case Law
1. Arbitral Awards
2. National Case Law
2.1. American Case Law
2.2. English Case Law 278
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
