Corruption in International Investment Arbitration Oxford International Arbitration Series 1st editon by Aloysius Llamzon ISBN 0191023698 9780191023699

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ISBN 10: 0191023698
ISBN 13: 9780191023699
Author: Aloysius P Llamzon

This is the first comprehensive study of corruption in international investment arbitration. The book considers the limited effectiveness of efforts to combat transnational corruption in international law and the emergence of international investment arbitration as a singular means for effective control of corruption within the international legal order. The case law on corruption by investment tribunals is studied exhaustively, jurisprudential trends are identified, and reforms aimed at enhancing the effectiveness and fairness of investment arbitration as a mechanism to combat corruption are proposed. Divided into three parts, part I focus on the phenomenon of corruption in foreign investment and attempts at its control through international law. Part II analyses the available case law in international investment arbitration dealing with corruption. Llamzon identifies nine distinct trends emerging from the case law and provides a table summarizing the key areas of corruption decision-making and each relevant tribunal’s approach, which is an invaluable tool for practitioners engaging in ‘live’ issues of corruption within arbitral proceedings. Part III reflects on the implications of these trends for both the ‘supply’ and ‘demand’ sides of corruption in international law, and proposes a integrative framework of decision for corruption issues in international investment arbitration.

Corruption in International Investment Arbitration Oxford International Arbitration Series 1st Table of contents:

1: Introductory Chapter: Arbitrating Transnational Corruption

A. The Decision-maker’s Dilemma

B. The Subject of Study

C. The Phenomenon

D. Anti-Corruption: Formal Laws and Informal Codes

E. Investor Protection in International Investment Arbitration

F. Arbitral Attitudes

G. Competing Legal and Policy Questions

H. Overview of the Book

Part I: Transnational Corruption and International Efforts At Its Control

2: The Nature of Transnational Corruption

A. A Working Definition of Corruption

B. The ‘Inevitability’ of Corruption in Social Development

C. Perspectives from Economics

D. Prohibited Corruption vs. Permitted Inducement

E. The Natural Habitat of Transnational Corruption

3: A Typology of Corruption in Foreign Investment

A. Introduction: Taxonomic Distinctions

B. Governmental Action Purchased: Transaction vs. Variance Bribery

C. Corruption as Risk-Abatement: Political vs. Economic Risk

4: International Efforts to Combat Corruption in Foreign Investment

A. An Overview

B. National and International Anti-Foreign Corruption Instruments

C. Efforts to Utilize International Arbitration for Enforcing Anti-Corruption Norms

D. Conclusion: The Limits of the International Anti-Corruption Consensus

Part II: The Jurisprudence On Corruption in International Investment Arbitration: Case and Trend Analysis

5: The Scope of Inquiry: Treaty vs. Contract ‘Investment Arbitration’

A. Background to the Commercial/Investment Arbitration Dichotomy

B. Similarities in Procedure and Personalities

C. Investment and Commercial Arbitration: the Differences

D. Protected ‘Investments’ and the Host State’s Economic Development

E. Contract-Based International Investment Arbitration

F. A Note on the Cases Selected for Analysis

6: The Cases

A. Cases where Corruption was Outcome-Determinative

B. Cases where Corruption Allegations did not Prosper

7: Emergent Trends

A. Introduction

B. Corruption Allegations are Almost Never Outcome-Determinative

C. Corruption is Raised Mostly by Host States as a Complete Defence

D. Investors Sometimes Raise Corruption, Without Success

E. Who Alleges Corruption Tends to Affect its Treatment by Tribunals

F. Elevated Evidentiary Standards Have Frequently Been Required for Corruption

G. Corruption is Sometimes Pursued through Other Means

H. Few Tribunals Have Inquired into the Host State’s Prosecution of Corrupt Public Officials

I. When Corruption Occurs Affects its Legal Consequences

J. Corruption is Alleged Increasingly, with Preclusive Effect

Part III: Towards A Jurisprudence Constante in Investment Arbitration Decision-Making On Corruption

8: Mere Corruption? On the Reluctance to Decide Corruption Issues

A. Avoiding Corruption Issues: An Overview

B. The Importance of Investment Arbitration Decisions in the Progressive Development of International Law

C. Mere Corruption? Understanding the Scarcity of Corruption-Related Arbitral Reasoning

D. The Reasons Requirement and Operational Codes in Investment Arbitration Decision-making on Corruption

9: Proving Corruption

A. Introduction: The Difficulty of Proving Corruption

B. Tribunals as Inquisitors? The Duty to Pursue Corruption Allegations

C. Burdens of Proof, Presumptions, Inferences, and ‘Red Flags’

D. Standards of Proof

10: State Responsibility for Corruption: The Attribution Asymmetry

A. Introduction: The Bilateral Nature of Corruption, International Law and State Responsibility

B. State Responsibility in International Investment Arbitration

C. The Salient Investment Arbitration Decisions: An Analysis

D. State Responsibility and Transnational Corruption

E. Conclusion: Principles on State Responsibility for Corruption

11: Concluding Chapter: Legal and Policy Tensions Underlying Anti-Corruption Decision-making

A. The Scope of Arbitral Decision-making on Corruption

B. Competing Policy Goals

C. Distinguishing Political Risk from Economic Risk

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