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Corruption in International Trade and Commercial Arbitration : International Arbitration Law Library Series, 10 - Abdul Hay Sayed

Corruption in International Trade and Commercial Arbitration

International Arbitration Law Library Series, 10

By: Abdul Hay Sayed (Editor)

Hardcover Published: 1st April 2004
ISBN: 9789041122360
Number Of Pages: 482

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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.

  • Forewordp. xvii
    Prefacep. xxi
    Introductionp. xxiii
    Judging Corruption in Arbitrationp. 1
    A Brief Outline of the Underlying Paradigm of Arbitral Decision-Makingp. 1
    The Main Attitudes In Evaluating Corruptionp. 8
    The Repressive Tendencyp. 9
    The Indifferent Tendencyp. 19
    Concluding Remarksp. 24
    Arbitrability of Public Procurement-Related Mattersp. 27
    Overviewp. 27
    Arbitrability of Public Procurement-Related Mattersp. 29
    The Legal Basis of the Non-Arbitrability of Public Procurement-Related Mattersp. 29
    The Arbitrator's Initiative In Raising The Non-Arbitrability of Public Procurement-Related Mattersp. 33
    Applicable Law on the Question of Arbitrability of Public Procurement-Related Mattersp. 36
    Concluding Remarksp. 40
    Corruption and the Validity of the Arbitration Agreementp. 43
    Overviewp. 43
    Contract of Corruption and the Validity of the Arbitration Agreementp. 46
    The Westacre Casep. 47
    The Historical Context of Westacrep. 54
    Measuring The Degree of Offensiveness of Coruptionp. 55
    The Quality of the Awardp. 57
    Separability Between Indifference to Corruption and Repressionp. 57
    Validity of an Agreement to Arbitrate Corruption Mattersp. 58
    ICC Case No. 1110 of 1963: The Lagergren Awardp. 59
    Arbitral Disengagement from Adjudicating Corruption Contractsp. 65
    Public Procurement Contracts Obtained by Briberyp. 69
    Arbitrability of Corruption Matters in Public Procurement Contractsp. 69
    Corruption as Defect of Consent to the Public Procurement Contractp. 76
    Concluding Remarksp. 87
    Evidence of Corruptionp. 89
    Evidence in Arbitrationp. 89
    Arbitral Freedom in Determining Rules of Evidencep. 89
    Burden and Standard of Proofp. 92
    Direct and Circumstantial Evidencep. 93
    Presumptionsp. 94
    Witness Testimonyp. 96
    Documentary Evidencep. 97
    The Arbitration Evidentiary Predicamentp. 98
    Evidence of Corruption in Arbitrationp. 100
    Outline of the Potentially Relevant Elements of Facts in a Corrupt Schemep. 101
    Standard of Proof in Corruption Mattersp. 102
    Extent of Proof in Bribery Mattersp. 106
    The Arbitration Evidentiary Predicament and the Struggle Against Secrecyp. 116
    Concluding Remarksp. 157
    Choice-of-Law Problems and Corruptionp. 159
    Overview of the Doctrine of Party Autonomyp. 159
    Party Autonomy in National Lawp. 160
    Party Autonomy in International Arbitrationp. 162
    Corruption and the a priori Limits on the Choice of the Applicable Lawp. 167
    The Choice of a Neutralizing Lawp. 168
    The Rule of Validation Requirementp. 178
    Concluding Remarksp. 186
    Application of Mandatory Laws Prohibiting Corruptionp. 189
    Describing Anti-corruption Lawsp. 190
    Anti-Corruption Laws Enacted by Importing Countriesp. 190
    Anti-Corruption Laws Enacted by Exporting Countriesp. 201
    An Inquiry Into The Mandatory Nature of Anti-Corruption Lawsp. 230
    Applicability of Anti-Corruption laws In International Commercial Arbitrationp. 232
    The Taking Into Consideration of Foreign Mandatory Anti-Corruption Lawsp. 234
    The Direct Application of Foreign Mandatory Anti-Corruption Lawsp. 254
    Concluding Remarksp. 275
    Application of Universal Values Prohibiting Corruptionp. 277
    "Transnational" Public Policyp. 278
    Origins: The Notion of Societas Mercatorump. 278
    Definition of Transnational Public Policyp. 281
    Function of Transnational Public Policyp. 282
    Critiquesp. 283
    The Application of the Universal Moral Rulep. 285
    The Homology of the Moral Rule and Transnational Public Policyp. 286
    Identifying Transnational Public Policyp. 287
    The Foundation of the Universal Prohibition of Corruptionp. 289
    The Prohibition of Corruption is Essentialp. 289
    Prohibition of Corruption is Widely Sharedp. 290
    The Role of the Global Effort to Combat Corruption in Establishing Large Consensusp. 291
    The Prohibition of corruption and the Practice of Dual Intentionalityp. 310
    Describing The Underlying Dynamics of Corrupt Relationsp. 310
    Definition of Dual Intentionalityp. 320
    The Legal Effect of the Practice of Dual Intentionality on the Prohibition of corruptionp. 325
    The Prohibition of Corruption and Dual Intentionality in Arbitrationp. 345
    The Degree of Proliferation of Corruption and Arbitrationp. 344
    Intermediation in Arbitrationp. 348
    Dual intentionality in Arbitrationp. 349
    Concluding Remarksp. 353
    The Sanction of Corruptionp. 355
    Nullity of Corrupt Relationsp. 355
    Absolute Nullityp. 355
    Who Invokes Nullity?p. 357
    The Effect of Nullityp. 366
    Alternative Sanctions of Corruptionp. 376
    Ascertaining Absence of Servicesp. 376
    Invoking the Intermediary's Fraudulent Presentation of Evidencep. 380
    Concluding Remarksp. 388
    Corruption, Public Policy and Judicial Review of Awardsp. 391
    Balancing Award Finality and Public Policyp. 391
    Minimal Judicial Reviewp. 394
    Overviewp. 394
    Minimal Judicial Review and Corruptionp. 397
    Maximal Judicial Reviewp. 405
    Overview: The Case of Francep. 408
    Maximal Judicial Review and Corruptionp. 405
    The Contextual Approach to Judicial Reviewp. 412
    Contextual Review: The Case of Englandp. 412
    Contextual Judicial Review and Corruptionp. 413
    Concluding Remarksp. 420
    Conclusionp. 423
    Bibliographyp. 429
    Case Lawp. 429
    Arbitral Awardsp. 429
    National Case Lawp. 430
    National Law Materialsp. 432
    National Laws Pertaining to Corruptionp. 432
    National Documentsp. 435
    International Documentsp. 436
    United Nationsp. 436
    OECDp. 438
    Council of Europep. 438
    World Bank and International Monetary Fundp. 439
    World Trade Organizationp. 441
    Organization of American Statesp. 441
    Transparency Internationalp. 441
    International Chamber of Commercep. 442
    International Law Associationp. 442
    Miscellaneousp. 442
    Institute of International Lawp. 442
    Courses at the Hague Academy of International Lawp. 443
    Collective Worksp. 443
    Booksp. 446
    Articlesp. 452
    Subject Indexp. 471
    Index of Arbitration Cases Dealing with Corruptionp. 483
    Table of Contents provided by Rittenhouse. All Rights Reserved.

    ISBN: 9789041122360
    ISBN-10: 9041122362
    Series: International Arbitration Law Library Series, 10
    Audience: General
    Format: Hardcover
    Language: English
    Number Of Pages: 482
    Published: 1st April 2004
    Country of Publication: NL
    Dimensions (cm): 24.77 x 17.15  x 3.18
    Weight (kg): 0.95