Corruption in International Trade and Commercial Arbitration

Name: Corruption in International Trade and Commercial Arbitration
Brand: Kluwer Law International
Price: 316.99 EUR
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Abdulhay Sayed(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 1. April 2004

518 Seiten

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Inhalt

Cover
Half Title Page
Title Page
Copyright Page
Dedication
Table of Contents
Foreword
Preface
Introduction
Chapter 1 Judging Corruption in Arbitration
I. A Brief Outline of the Underlying Paradigm of Arbitral Decision-Making
II. The Main Attitudes In Evaluating Corruption
A. The Repressive Tendency
i. The Conception on The Role of Arbitrators
ii. Condemning Corruption: A hypothesis on the Moral Basis
a. Awkward Disruption of Trade
b. Privation to the National Community
B. The Indifferent Tendency
i. The Point of View of the Scientific Observer of Corruption
ii. The Point of View of the Arbitrator in Matters Involving Corruption
III. Concluding Remarks
Chapter 2 Arbitrability of Public Procurement-Related Matters
I. Overview
II. Arbitrability of Public Procurement-Related Matters
A. The Legal Basis of the Non-Arbitrability of Public Procurement-Related Matters
i. Nature of Public Procurement Laws
ii. Basis of Non-Arbitrability of Public Procurement-Related Matters
B. T he Arbitrator's Initiative in Raising the Non-Arbitrability of Public Procurement-Related Matters
i. Arbitrability Contested by One Party
ii. Arbitrability Discarded by the Parties
C. Applicable Law on the Question of Arbitrability of Public Procurement-Related Matters
i. The Mandatory Nature of Public Procurement Laws
a. A first Approximation of the Notion of Mandatory Laws
b. An Inquiry into the Mandatory Nature of Public Procurement Laws
ii. The Arbitrator's Application of the Mandatory Non-Arbitrability of Public Procurement-Related Matters
III. Concluding Remarks
Chapter 3 Corruption and the Validity of the Arbitration Agreement
I. Overview
II. Contract of Corruption and the Validity of the Arbitration Agreement
A. The Westacre Case
B. The Historical Context of Westacre
C. Measuring the Degree of Offensiveness of Corruption
D. The Quality of the Award
E. Separability Between Indifference to Corruption and Repression
III. Validity of an Agreement to Arbitrate Corruption Matters
A. ICC Case No. 1110 of 1963: The Lagergren Award
B. Arbitral Disengagement from Adjudicating Corruption Contracts
i. The Lagergren Solution: Immoral Contracts are ''Non-Arbitrable''
ii. The Immoral Mission of the Arbitrator
IV. Public Procurement Contracts Obtained by Bribery
A. Arbitrability of Corruption Matters in Public Procurement Contracts
i. Arbitrability from the Perspective of the National Judge
ii. Arbitrability from the Perspective of the Arbitrator
B. Corruption as Defect of Consent to the Public Procurement Contract
i. The Westinghouse Case
ii. Corruption as an Independent Defect of Consent
iii. Corruption as a Case of Fraudulent Representation
iv. Effect of the Defect of Consent on The Agreement
v. Effect of Avoidance on the Arbitration Clause
V. Concluding Remarks
Chapter 4 Evidence of Corruption
I. Evidence in Arbitration
A. Arbitral Freedom in Determining Rules of Evidence
B. Burden and Standard of Proof
C. Direct and Circumstantial Evidence
D. Presumptions
i. Presumptions and Circumstantial Evidence
ii. Where Presumptions Are Found?
iii. Simple and Conclusive Presumption
E. Witness Testimony
i. Discretion to Weigh Testimony
ii. False Testimony
F. Documentary Evidence
G. The Arbitration Evidentiary Predicament
II. Evidence of Corruption in Arbitration
A. Outline of the Potentially Relevant Elements of Facts in a Corrupt Scheme
B. Standard of Proof in Corruption Matters
i. High Standard of Proof: The Westinghouse Case
ii. The Normal Weighing of Probabilities: ICC Case No. 6497
C. Extent of Proof in Bribery Matters
i. Nature of Evidence to Prove a Case of Bribery
ii. Facts Required to Be Proved in Bribery Matters
a. The Case of Bribery Affecting a Public Procurement Contract
b. Proof of Bribery in an Intermediation Relation
1. Proof of Common Corrupt Intention
2. Proof of One Corrupt Intention is Sufficient
3. Proof of the Intermediary's Corrupt Intent is Sufficient
D. The Arbitration Evidentiary Predicament and the Struggle Against Secrecy
i. The Struggle Against Secrecy in Evidence-Gathering
a. The Effect of Party Refusal to Bring Evidence
b. The Effect of Party Reluctance to Bring Evidence
1. The Case of a Resisting Intermediary
2. The Case of a Resisting Principal
c. Arbitral Activism and Impartiality
ii. Use of Presumptions and Circumstantial Evidence in Bribery Matters
a. The Nature of Services to be Rendered by the Intermediary
1. Absence of Proof of Services
2. The Way Services Are Performed
b. The Nature of Remuneration
1. Remuneration on a Percentage Basis
2. Disproportion Between The Percentage Promised and Services Rendered
3. High Commission Rates
c. The Identity and Status of the Intermediary
1. Intermediary is an Acting or Former Public Official
2. Ambiguities About the Intermediary's Internal Organization and Mode of Operation
d. Circumstances Surrounding the Granting of a Favorable Official Decision
1. Increase of the Awarded Public Procurement Contract Price
2. Stringent Public Procurement Procedures
3. Impact of Commissions on the Public Purchasing Party's Resources
III. Concluding Remarks
Chapter 5 Choice-of-Law Problems and Corruption
I. Overview of the Doctrine of Party Autonomy
A. Party Autonomy in National Law
B. Party Autonomy in International Arbitration
i. Freedom of Choice
ii. Choice-of-law Constrained
iii. Conceptualizing The Relation Between the Choice-of-Law and its Limits
II. Corruption and the a priori Limits on the Choice of the Applicable Law
A. The Choice of a Neutralizing Law
i. Overview
ii. Between Fraude à la Loi and Application of Mandatory Rules
iii. Choice-of-law Made by The parties
iv. Choice-of-law Determined by the Arbitrator
a. ICC Case No. 8113 of 1996
b. The Westinghouse Case
c. Avoiding Prejudgment: Reserving Mandatory L aws to the Substance
B. The Rule of Validation Requirement
i. The Rule of Validation and the Parties' Choice-of-Law
a. Overview
b. Application on Corruption Relations
ii. The Rule of Validation and the Arbitrator's Determination of the Applicable Law
a. Overview
b. ICC Arbitration Case No. 4145
c. Falling in the Prejudgment Trap
III. Concluding Remarks
Chapter 6 Application of Mandatory Laws Prohibiting Corruption
I. Describing Anti-corruption Laws
A. Anti-Corruption Laws Enacted by Importing Countries
i. Prevention Laws
a. General Definition of Intermediation
b. Regulation or Prohibition of Intermediation in Government Procurement
c. Sanctions
ii. Sanctioning Laws
a. Active and Passive Corruption
b. Influence Peddling
B. Anti-Corruption Laws Enacted by Exporting Countries
i. The US Foreign Corrupt Practices Act
a. Events Leading to the Enactment of the Foreign Corrupt Practices Act
b. Analysis of The US Foreign Corrupt Practices Act
c. Implementation and Efforts to Export the FCPA Model
ii. OECD Convention and Implementing National Legislations
a. Events Leading to the Signing of the OECD Convention
b. The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions
c. National Implementing Legislations
iii. The Council of Europe's Conventions on Corruption
a. The Criminal Law Convention on Corruption
b. The Civil Law Convention on Corruption
iv. The Inter-American Convention Against Corruption
C. An Inquiry Into The Mandatory Nature of Anti-Corruption Laws
i. Anti-Corruption Laws Enacted by Importing Countries
a. The Penal Nature of Anti-Corruption Laws
b. The Public Law Nature of Anti-Corruption Laws
c. The Mandatory Nature of Anti-Corruption Laws
ii. Anti-Corruption Laws Enacted by Exporting Countries
II. Applicability of Anti-Corruption laws In International Commercial Arbitration
A. The Taking Into Consideration of Foreign Mandatory Anti-Corruption Laws
i. The Hilmarton Case
a. The Agreement and the Development of the Proceedings
b. The First Arbitral Award
c. The Second Arbitration Award
d. The Hilmarton Case in England
ii. Two Swiss Arbitral Awards Refusing to Take Into Consideration Foreign Mandatory laws
iii. The Northrop v. Triad Case
iv. The Two Forms of the Taking Into Consideration of Anti-corrutpion laws
a. Impossibility of Performance
b. Illegality Under Foreign Law
v. Critique of the Technique of the Taking Into Consideration of Foreign Mandatory Anti-Corruption Laws
B. The Direct Application of Foreign Mandatory Anti-Corruption Laws
i. Foreign Mandatory Law in National Legal Systems
a. Legal Authorization of the Direct Applicability of Foreign Mandatory Law
b. Consideration of Direct Application of Foreign Anti-Corruption Laws by National Judges
ii. Application of ''Foreign'' Anti-Corruption Mandatory Laws in International Commercial Arbitration
a. The Scholarly Debate
1. Arguments Favoring The Application of ''Foreign'' Mandatory Anti-Corruption Laws
2. Arguments Against the Application of Foreign Mandatory Anti-Corruption Laws
b. The Arbitral Practice
1. Application of a ''Foreign'' Mandatory Anti-Corruption Law Is a Violation of Party Autonomy
2. ''Foreign'' Mandatory Laws Are not Applicable in Arbitration
3. The Anti-Corruption Law Invoked is Not Mandatory
4. The Mandatory Anti-Corruption Law Does not Exhibit Preponderant Interest
5. Examination of the Foreign Mandatory Anti-Corruption Law Despite Declaration of Inapplicability
III. Concluding Remarks
Chapter 7 Application of Universal Values Prohibiting Corruption
I. ''Transnational'' Public Policy
A. Origins: The Notion of Societas Mercatorum
B. Definition of Transnational Public Policy
C. Function of Transnational Public Policy
D. Critiques
E. The Application of the Universal Moral Rule
F. The Homology of the Moral Rule and Transnational Public Policy
G. Identifying Transnational Public Policy
II. The Foundation of the Universal Prohibition of Corruption
A. The Prohibition of Corruption is Essential
B. Prohibition of Corruption is Widely Shared
C. The Role of the Global Effort to Combat Corruption in Establishing Large Consensus
i. The Role of International Conventions
ii. The Work of International Financial Institutions
iii. The Work of the World Trade Organization
iv. The Work of the United Nations
v. The Work of Non-Governmental Organizations
vi. International Conferences and the Media
vii. Reference to a So-Called Consensus in Arbitration
III. The Prohibition of Corruption and the Practice of Dual Intentionality
A. Describing The Underlying Dynamics of Corrupt Relations
i. The Underlying System of Values Governing Corrupt Relations
ii. Techniques of Preserving Secrecy
iii. The Guardians of Corrupt Practices
a. The Central Role of Intermediaries in Corrupt Schemes
b. The Origin of Intermediaries' Knowledge and Experience of Corrupt Practices
iv. The Enforcement Predicament of Corrupt Structures
B. Definition of Dual Intentionality
i. The Apparent and Hidden Intentions
ii. Situations of Dual Intentionality
iii. Dual Intentionality and Simulation
C. The Legal Effect of the Practice of Dual Intentionality on the Prohibition of Corruption
i. Dual Intentionality as a Problem of Effectiveness of the Prohibition of Corruption
a. Rule Effectiveness in Legal Theory
b. The Impact of Dual Intentionality on the Effectiveness of the Prohibition of Corruption
ii. Dual Intentionality as a Contra Legem Customary Rule
a. Dual Intentionality as a Usage of International Trade
b. The Usage of Dual Intentionality Transformed to a Full-Fledged Rule
c. The Legal Validity of Dual Intentionality and the Imperativeness of the Prohibition of Corruption
d. The Rule of Dual Intentionality and the Prohibition of Corruption
iii. Dual Intentionality as a Rule in the Legal Order of the Social Space of Corrupt Relations
a. For What Group the Prohibition of Corruption is Essential ?
b. Introducing the Concept of Legal Pluralism
c. The Relativity of Public Policy
d. Towards a Pluralist Study of the Social Landscape of International Trade and Corruption
1. The Classical Normative System of the State
2. The Normative System of the Lex Mercatoria
3. The Normative System of Corrupt Relations
IV. The Prohibition of Corruption and Dual Intentionality in Arbitration
A. The Degree of Proliferation of Corruption and Arbitration
B. Intermediation in Arbitration
C. Dual Intentionality in Arbitration
i. The a posteriori Legitimation of Intermediation
ii. The a priori Legality of Intermediation
V. Concluding Remarks
Chapter 8 The Sanction of Corruption
I. Nullity of Corrupt Relations
A. Absolute Nullity
B. Who Invokes Nullity?
i. The Party Instigating Corruption
ii. The Party Driven to the Corrupt Scheme
a. The Briber Subject to Extortion
b. The Case of Bona Fide Principals
1. Illegality Arising During Performance
2. Illegality Arising Upon Contract Conclusion
iii. The Arbitral Tribunal
a. Allusions to Bribery Nourishing Repression
b. Allusions to Bribery Producing Indifference
iv. The State Whose Official is Bribed
C. The EVect of Nullity
i. The Effect of Nullity in Non-Performed Contracts
ii. The Effect of Nullity on Partially Performed Contracts
a. Recovery of the Things Paid
b. Exclusion of Recovery
1. Definition
2. The Resulting Paradox
c. Exclusion of Recovery In Contextual Perspective
1. The Case of Intermediary Instigating Corruption
2. The Case of Principal Instigating Corruption
3. The Paradox Unbroken
iii. The Exclusion of Recovery in the Arbitral Practice
a. The Strict Application of the Principle of Non-Recovery
b. The Pragmatic Approach
II. Alternative Sanctions of Corruption
A. Ascertaining Absence of Services
i. The Theoretical Proposition
ii. The Practice
B. Invoking the Intermediary's Fraudulent Presentation of Evidence
i. The Theoretical Proposition
ii. The Practice
a. False testimony
b. Presentation of Forged Document
c. Fraudulent Maneuvers Affecting the Presentation of a Whole Case
III. Concluding Remarks
Chapter 9 Corruption, Public Policy and Judicial Review of Awards
I. Balancing Award Finality and Public Policy
II. Minimal Judicial Review
A. Overview
i. The Case of Switzerland
ii. The Case of the United States
B. Minimal Judicial Review and Corruption
i. Judicial Review and Corruption in Switzerland
a. Westinghouse
b. Frontier AG. v. Thomson
c. Westacre in Switzerland
ii. Judicial Review and Corruption in the United States: Northrop v. Triad
iii. The Problems of Surface Review
III. Maximal Judicial Review
A. Overview: The Case of France
B. Maximal Judicial Review and Corruption
i. Westman
ii. Frontier AG v. Thomson CSF
IV. The Contextual Approach to Judicial Review
A. Contextual Review: The Case of England
B. Contextual Judicial Review and Corruption
i. Act One: Westacre Before the Queen's Bench Division
ii. Act Two: Soleimany v. Soleimany
iii. Act Three: Westacre Before the Court of Appeal
iv. Act Four: Hilmarton Before the Queen's Bench Division
V. Concluding Remarks
Conclusion
Bibliography
I. Case Law
1. Arbitral Awards
2. National Case Law
2.1. American Case Law
2.2. Belgian Case Law
2.3. English Case Law
2.4. French Case Law
2.5. German Case Law
2.6. Swiss Case Law
2.7. Miscellaneous
II. National Law Materials
1. National Laws Pertaining to Corruption
2. National Documents
III. International Documents
1. United Nations
2. OECD
3. Council of Europe
4. World Bank and International Monetary Fund
5. World Trade Organization
6. Organization of American States
7. Transparency International
8. International Chamber of Commerce
9. International Law Association
10. Miscellaneous
IV. Institute of International Law
V. Courses at the Hague Academy of International Law
VI. Collective Works
VII. Books
VIII. Articles
Subject Index
Index of Arbitration Cases Dealing with Corruption
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