Authored by Emmanuel Gaillard and published in Arbitration International, Volume 35, Issue 1, March 2019, this is a comprehensive, very useful and timely work dealing with the emergence of general principles available to arbitrators who adjudicate corruption issues.
The following introductory remarks to the paper provide an outline of the detail that follows:
“Corruption is today one of the greatest challenges facing international commerce and has serious detrimental effects on markets, efficiency, and public welfare. While corruption is certainly not a novel issue for arbitration…arbitrators in both commercial and investment treaty arbitration proceedings are today adjudicating corruption issues with increasing frequency.
…this article will focus on three issues that arbitrators face when deciding corruption allegations: whether corruption can be proven through circumstantial evidence or the so-called ‘red flags’…; whether benefits rendered in the performance of a contract tainted by corruption or illegality are recoverable in restitution…; and whether local mandatory rules (lois de police) should displace the parties’ choice of law when issues of corruption and illegality are at stake…”