Corruption in Commercial and Investment Treaty Disputes: From Gray to Black and White?

Presentation

Banishing the gray in favour of black and white, arbitrators are entrusted with making binary judgments within legal systems that struggle to capture the nuances of real-life situations. The task is further complicated by trans-border corruption, where cultural differences and bureaucratic intricacies obscure accountability.

The effectiveness of International Arbitration in addressing corruption remains limited, as evidenced by the scarcity of cases where corruption significantly impacts outcomes. Challenges include investigating bribery, standards of proof and consequences of corruption. Tasked with deciding disputes arising from over 3,000 investment treaties alone, arbitrators often speak in abstract terms when reaching their decisions.

Despite these hurdles, Arbitration holds promise in reconciling anti-corruption efforts and protecting foreign investment. We argue this through case studies (Agility Public Warehousing Company K.S.C.P. v Republic of Iraq, the Karkey (Pakistan) case, and others) bringing together leading counsel, investigators, and foreign investors.