Competence-Competence in the Face of Illegality in Contracts and Arbitration Agreements.

COPY RIGHT -- Competence-Competence in the face of illegality in Contracts and arbitration agreements -- TABLE OF CONTENTS -- INTRODUCTION -- CHAPTER I DEFINITION OF THE SUBJECT -- A. Initial Focus and Questions -- B. The Range of Questions Seeking Answers -- C. The Historical Setting in Commercial Arbitration -- D. The Historical Setting in Investment-Treaty Arbitration -- E. Corruption in Cross-Border Commercial Life -- F. The Intersection between Corruption and Law -- CHAPTER II THE MEANING OF "ILLEGALITY" -- A. Overview of the Problem of Illegality in Its Different Forms -- 1. Overtly illegal contracts -- 2. Illegality and lack of assent -- 3. Illicit contracts and public versus private parties -- 4. Illegality ab initio versus ex post -- B. Circumstances of the Illegality -- 1. Initial awareness of the illegality by all parties -- 2. Subsequent awareness of the illegality by all parties -- 3. Illicit intention and awareness of one party -- 4. Reliance on the illegality as claim or defence -- 5. Contracts of bribery versus contracts arising out ofbribery -- C. Suspicion of Illegality versus Knowledge or Obviousness of Same -- 1. Maintaining impartiality and equal treatment -- 2. Dilatory tactics and allegations of illegality -- 3. Mutual denial of illegality -- D. Initial Attempts at Definitions of "Corruption"and "Bribery" -- E. International and Transnational Efforts to Define "Bribery" -- F. The Temporal Dimension of Illegality -- G. Different National Legislative Approaches to the Definition of Illegality -- 1. "Facilitation payments", "speed money" and "grease payments" -- 2. Differences in the definition of elements of corrupt conduct -- 3. Differences in the dividing line between corrupt and non-corrupt intermediaries -- H. Illegality and Investment Arbitration.

CHAPTER III THE CONTEXT OF PRIVATE INTERNATIONAL LAW VERSUS PUBLIC INTERNATIONAL LAW -- A. Introduction -- 1. International commercial arbitration based on contractual privity -- 2. International investment arbitration based on contractual privity -- 3. International investment arbitration based on a BITor MIT, without contractual privity -- B. The Meaning of Public Policy in International Arbitration -- 1. Limitations to party autonomy -- 2. The meaning and function of public policy in international arbitration -- 3. The function of public policy in international arbitration generally -- (a) Public policy limitations to arbitration as a means of dispute settlement -- (b) Public policy limitations to the applicable substantive and procedural law -- (c) Public policy limitations to the existence and enforcement of an award -- (i) Court practice in the United States -- (ii) Court practice in France -- (iii) Court practice in England -- (iv) Court practice in Germany -- (v) Court practice in Switzerland -- 4. The existence and role of public policy for the international arbitrator -- (a) The absence of a lex fori and the role of publicpolicy -- (b) Criticism of an "international" or "transnational" public policy -- (c) Rebuttal to the criticism of an "international"or "transnational" public policy -- 5. Corruption and bribery in public and private internationallaw -- (a) Prevailing opinion on bribery as a matter of customary law -- (b) Widespread condemnation of bribery by tribunals -- (c) Criticism of the existence of a transnational public policy prohibition against bribery -- CHAPTER IV THE QUESTION OF THE APPLICABLE LAW OR LAWS -- A. International Commercial Arbitration and the Applicable Law -- 1. Lex contractus as manifestation of party autonomy -- 2. Lex contractus, lex arbitri and the place of performance.

3. The connectedness of the law of place of performance -- 4. Violation of universal public policy versus local public policy -- B. International Investment Arbitration and the Applicable Law -- 1. The autonomy of the parties to choose the law in international investment disputes -- 2. Party autonomy and the law of the host State -- 3. The law of the investor or the law of a third State -- 4. The investment agreement as a self-contained legal system -- 5. Rules of law versus bodies of law -- 6. The choice of "international law" -- 7. International law as a component of domestic law -- 8. International law in the "absence" of its choice by the parties -- 9. Consequences of non-application of proper law -nullity -- 10. Corruption and illegality in an investment treaty based choice of law -- C. Commercial versus Investment Arbitration : Reconciling Illegality and Applicable Law -- CHAPTER V CORRUPTION ALLEGATIONS, SUSPICIONS, FINDINGS AND ADMISSIONS -- A. The Different Contexts in Which Corruption Plays a Role -- 1. Overview of the problem of illegality in its different forms -- 2. Different kinds of illegality -- (a) Overtly illegal contracts -- (b) Illegality and lack of assent -- (c) Illicit contracts and public versus private parties -- (d) Illegality ab initio versus ex post -- 3. Different factual circumstances of illegality -- (a) Initial awareness of the illegality by all parties -- (b) Subsequent awareness of the illegality by all parties -- (c) Illicit intention and awareness by only one party -- (d) Reliance on the illegality as a claim or defence -- (e) Contracts of bribery versus contracts arising out of bribery -- 4. Suspicion of illegality versus knowledge or obviousnessof the same -- (a) Maintaining impartiality and equal treatment -- (b) Dilatory tactics and allegations of illegality -- (c) Mutual denial of illegality.

B. Illegality and Jurisdictional Limitations -- 1. Competence-competence -- (a) Commercial arbitration -- (b) Investment treaty arbitration -- 2. Illegality and separability of the arbitration agreement -- (a) Commercial arbitration -- (b) Investment treaty arbitration -- 3. Arbitrability -- (a) Commercial arbitration -- (b) Investment treaty arbitration -- 4. Corruption issues and competence, separability and arbitrability -- CHAPTER VI THE BURDEN OF PROOF AND THE STANDARD OF PROOF OF ILLEGALITY -- A. Introduction -- B. Burden of Proof Generally -- 1. Commercial context -- 2. Investment treaty context -- 3. General approaches to burden of proof and its allocation -- C. Burden of Proof and Corruption -- 1. General challenges -- 2. Parallel litigation, arbitration or investigations -- (a) Absence of contractual privity -- (b) Existence of contractual privity -- (c) Issues related to the seat and/or applicable arbitral rules -- (d) Degree of relatedness and relevance -- 3. Approaches to proof in commercial and public law arbitration -- 4. Approaches to proof in investment treaty arbitration -- 5. Similarities and differences in commercial and investment approaches to proof -- CHAPTER VII ATTRIBUTION OF ILLEGAL ACTIONS AND KNOWLEDGE OF THE STATE -- A. Introduction -- B. Attribution Generally in International Arbitration Involving States -- C. The Intersection between Corruption and Attribution -- CHAPTER VIII THE RIGHTS AND DUTIES OF THE ARBITRATOR -- A. Introduction -- B. Conceptual Challenges and Issues Related to Rights and Duties Generally -- 1. Rights of the international arbitrator -- 2. Duties of the international arbitrator -- (a) Duties of the arbitrator and party autonomy -- (b) Duties of the arbitrator and public policy -- (c) Standards of procedural international public policy -- (d) Policy-related concerns, including enforceability.

3. The arbitrator's investigative rights and duties in the context of corruption -- 4. Should or must an arbitrator always decide illegality when alleged ? -- (a) Degree or lack of reviewability of the award -- (b) The limited extent and quality of review of the award -- (c) The unlikelihood of review or annulment of the award -- (d) The quality of the award and its subsequentscrutiny -- (e) The precedential value or use of the award -- (f) Social engineering within the constraints of the arbitral mandate -- (g) Toleration of illegality as a discouragement for future conduct -- (h) Pressure and moral suasion on the reviewing instance -- (i) The undesirable option of resignation -- (j) The arbitrator and the appointing authority -- (k) Informing the penal authorities of the illegality -- 5. How should or must the arbitrator treat illegality when admitted? -- 6. Should or must the arbitrator, sua sponte, decide illegality when not alleged ? -- CHAPTER IX LEGAL CONSEQUENCES OF A FINDINGOR ADMISSION OF CORRUPTION -- A. Introduction -- B. Jurisdiction and Admissibility versus the Merits : General Conceptual Challenges -- 1. Issues common to commercial and investment treaty context -- (a) Time and cost of adjudication -- (b) Assessment of the issue at an early, uninformedstage -- (c) The right of the arbitrator to confirm his authority -- (d) Waiver of objections by the party -- (e) Characterization of the objection or defence -- (f) Tribunal considerations in making the characterization -- (g) Bifurcation and the further arbitral proceedings -- 2. Differences between commercial and investment treaty context -- (a) Perspectives on time and cost of adjudication -- (b) Trends in requesting and granting requests for bifurcation -- (c) The applicable law or laws -- (d) Privity of contract versus "consent" -- (e) Distinguishing jurisdiction and admissibility.

C. Jurisdiction and Admissibility versus the Merits :The Illegality and Corruption Context.

Competence-competence and corruption have, for different reasons, been mainstays of international dispute resolution thought and practice for the longest time. In the last few years, their intersection has become increasingly important and problematic. These lectures seek to define the problem and to provide acceptable solutions where possible. They attempt to derive support from both a stringent dogmatic approach and pragmatic attention to real-life expectations and conduct. More so than in other areas of private international law, the intersection between the powers of the arbitrator and the illegality of the subject matter or the parties' conduct poses a particular challenge. That challenge is to postulate proper solutions under the law, including principles of transnational or international law, to conduct which can take on a multiplicity of appearances owing to conflicting cultural understandings of what is and is not legal in commercial life. The statement that bribery and corruption offend transnational or international public policy does not relieve the arbitrator from the burden of scrutinizing that statement doctrinally and exploring its consequences in a period of ever-increasing globalization of economic activity and investment.

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Electronic reproduction. Ann Arbor, Michigan : ProQuest Ebook Central, 2024. Available via World Wide Web. Access may be limited to ProQuest Ebook Central affiliated libraries.