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Transnational Dispute Management -- Call for papers "Corruption and Arbitration" 

We are pleased to announce a forthcoming TDM special issue on "Corruption and Arbitration."

Edited by Prof. Dr. Richard Kreindler (Shearman & Sterling LLP) and Carolyn B. Lamm (White & Case LLP) this special issue will analyze new trends, developments, and challenges respecting the intersection between on the one hand allegations, suspicions or findings of corruption and on the other hand decisions by arbitral tribunals regarding jurisdiction, admissibility and the merits of commercial and investment disputes.

It has been some 40 years since an acute focus was placed, perhaps for the first time, on how an arbitral tribunal can, should or must conduct itself in the face of suspected or manifest illegality of the parties. The award in ICC Case No. 1110 (1963), rendered by Gunnar Lagergren, cast a sharp focus on issues of arbitration, including competence-competence and severability of the arbitration agreement, in the face of a suspected or manifestly illegal contract.

Against this background, the Special Issue intends to identify, critique and reconcile the different strands where possible and desirable, both from the arbitrator's and the party's perspective. The potential scope of the subject is indeed vast and possible topics for submission might include:

How can, should or must an arbitral tribunal act in the face of suspected corruption in a contract or an investment underlying the parties' dispute? How should a tribunal act in the face of corruption which is admitted or otherwise manifest?

Should the nature of the would-be illegality make a difference to the tribunal's assessment of its own jurisdiction? Of the separability of the agreement to arbitrate? Of arbitrability?

When should the issue of jurisdiction hinge on whether the corrupt act arguably tainted the contract or investment ab initio, as opposed to an illegality arising or becoming apparent only in the course of later performance?

Given suspected or manifest corruption, which standards of substantive law should apply as to whether and how to proceed respecting jurisdiction, admissibility, separability, arbitrability and the merits of the dispute? How should tribunals address differences in national law respecting the activities of agents, intermediaries and lobbyists? How should they reconcile national law with possibly competing "transnational public policy" or "international public policy"?

What challenges exist in terms of attribution of corrupt actions or knowledge of such actions to a state party in commercial arbitration, in investment arbitration, including in the context of the 2001 ILA Draft Articles on Responsibility of States?

How should burden of persuasion, burden of proof and the standard of proof be approached when faced with allegations or suspicions of corruption? What standard or standards should apply when and why? -- Can the rights and duties of the arbitrator to investigate corruption, including on his or her own initiative, be meaningfully identified? What about when such action collides or might collide with investigative efforts already undertaken or which might still be undertaken by national criminal authorities?

What justifications, excuses and defenses may exist to estop a party from invoking corruption on the part of the other party? What of the "unclean hands" doctrine and similar approaches?

What should be the legal consequences of a finding of corruption in commercial arbitration, in investment arbitration? When is it a question of jurisdiction, when of admissibility and when of the merits?

At the enforcement stage, what tensions may exist, where corruption has been alleged or proven, between the (un)enforceability of an arbitral award at the seat and the (un)enforceability of the same award in a foreign court? What limits should apply to de novo review by the foreign reviewing court?

What tools do arbitrators have, or not have, to investigate allegations of corruption, particularly when third parties may be involved?

Publication is expected in January 2013. Proposals for papers should be submitted to the editors by July 31, 2012.

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From International Law Reporter
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