On 29 April 2019, the Basel Institute of Governance release “Corruption and Money Laundering in International Arbitration: A Toolkit for Arbitrators”.
The toolkit sets out a step-by-step guide to help arbitrators recognise corruption, investigate it, and consider the possible consequences for the arbitration going forward. The toolkit deals with (i) the substantive aspects of corruption (how to become aware of corruption in a case; what does the concept of corruption and foreign bribery mean exactly?; and which norms of national and international law are applicable?); (ii) Evidence (sua sponte investigation of the alleged or suspected corruption; burden and standard of proof, circumstantial evidence and red flags; adverse inferences; national criminal proceedings); (iii) Legal consequences if corruption is established in arbitration; (iv) the substantive aspects of money laundering (how to become aware of money laundering in a case; what does the concept of money laundering mean exactly?; which norms of national and international law are applicable?); (v) Evidence; and (vi) Legal consequences if money laundering is established in arbitration.
Wilmer Hale review the toolkit, observing that while the toolkit provides a basic framework, the detail of how each step should be applied is, at times, somewhat vague; further, that it is evident throughout, particularly with regards to the choice of law and the burden and standard of proof, that there is scope for confusion and inconsistency, and that the consequences of a finding of corruption will largely be left to the arbitrator’s discretion.