Dealing with Bribery and Corruption in International Commercial Arbitration: To Probe or Not to Probe

The issue of bribery and corruption challenges the arbitrator’s allegiances. Although a plethora of legal scholarship clearly affirms this contention, an in-depth analysis of the important question of the authority and duty of international commercial arbitrators to investigate a suspicion or indication of bribery or corruption sua sponte – that is, on their own initiative – has been surprisingly lacking. This important book fills this gap, inter alia, by providing specific suggestions and establishing the sources of the powers and obligation of arbitral tribunals to sua sponte investigate bribery and corruption.

What’s in this book:

The book highlights the role of arbitrators in global efforts to combat transnational commercial bribery and corruption. Among others, the following critical issues are thoroughly investigated:

• arbitrability of issues of public interests,
• intermediary contracts,
• role of arbitrators in the fact-finding process,
• party autonomy versus overriding mandatory rules,
• iura novit curia in international commercial arbitration in the context of bribery and corruption,
• notion of transnational (or ‘truly international’) public policy,
• arbitrators’ duty to act as guardians of international commerce,
• investigative tools available to arbitrators,
• dealing with manifestly recalcitrant parties,
• possible consequences of violating the obligation to sua sponte investigate,; and
• the view from developing countries

The study leans primarily on Swiss law, as Switzerland is one of the most important jurisdictions in international commercial arbitration and includes a comparative analysis of the relevant laws, jurisprudence, and doctrine of other major arbitration venues, particularly England, France, and Germany.

How this will help you:

The book will help readers understand the complex issue of corruption and how it manifests itself not only in the context of in international commercial arbitration but also on society in general, especially from the perspective of developing economies. Outside the field of arbitration, with its sound theoretical and practical analysis, the book also provides jurists, legal scholars, in-house counsel for companies doing transnational business and public officials with highly enlightening perspectives on the interaction between international commercial arbitration and public interests.