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- Preliminary Material
- Main Text
- 1 Introductory Chapter: Arbitrating Transnational Corruption
- Part I Transnational Corruption and International Efforts at its Control
- 2 The Nature of Transnational Corruption
- 3 A Typology of Corruption in Foreign Investment
- 4 International Efforts to Combat Corruption in Foreign Investment
- Preliminary Material
- 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
- 4.80
- 4.81
- 4.82
- 1 Focus on ‘supply-side’ foreign investor corruption instead of ‘demand-side’ public official corruption
- 2 No consensus on the civil consequences of corruption
- 3 Anti-corruption as an intermediate objective towards economic development
- 4 The international anti-corruption framework as lex imperfecta ?
- 5 Gains and challenges in the enforcement of international anti-corruption norms—the question of proper penalties
- 6 The control of transnational corruption through international investment arbitration
- Part II The Jurisprudence on Corruption in International Investment Arbitration: Case and Trend Analysis
- 5 The Scope of Inquiry: Treaty vs. Contract 'Investment Arbitration'
- Preliminary Material
- 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
- Preliminary Material
- A Cases where Corruption was Outcome-Determinative
- 1 World Duty Free Company Ltd v. Republic of Kenya (2006)
- 6.01
- 6.02
- 6.03
- 6.04
- 6.05
- 6.06
- 6.07
- a After conclusion of the Agreement—alleged pressure on the investor, corruption of the Kenyan judiciary
- b Institution of proceedings
- c Kenya’s bribery defence
- d Investor’s response to bribery allegations
- e Characterization of the payment: cultural norm or bribe?
- f Legal effects of bribery upon the contract
- g Corruption not attributable to the State
- h Bribe not severable from the Agreement
- i Balancing corruption against host State misconduct not permitted
- j Corruption as a complete defence invoked by the host State
- k Avoidance of the Agreement timely
- l Waiver and affirmation defences of the claimant
- m Restitution
- n Severability
- o Substantive conclusion
- p Costs
- q Final notes
- 2 Metal-Tech v. Khazakhstan (ICSID; Award: 2013)
- 3 Siemens v. Argentina (ICSID; Award: 2007, Annulment and Revision Proceedings discontinued, 2009)
- 4 Azpetrol v. Azerbaijan (ICSID, 2009)
- 1 World Duty Free Company Ltd v. Republic of Kenya (2006)
- B Cases where Corruption Allegations did not Prosper
- 1 Southern Pacific Properties v. Arab Republic of Egypt (ICSID, 1992)
- 2 Wena Hotels Ltd v. Arab Republic of Egypt (ICSID, 2000)
- 3 Tanzania Electric Supply Co. v. Independent Power Tanzania Ltd (ICSID, 2001)
- 4 Methanex v. United States (UNCITRAL/NAFTA, 3 August 2005)
- 5 Lucchetti v. Peru (Award: 2005; Decision on Annulment: 2007)
- 6 Thunderbird v. Mexico (NAFTA/UNCITRAL, 2006)
- 7 F-W Oil Interests v. Trinidad and Tobago (ICSID, 2006)
- 8 Inceysa Vallisolentana, S.L. v. Republic of El Salvador (ICSID, 2006)
- 9 Fraport v. Philippines (ICSID; Award dated 16 August 2007; Decision on Annulment dated 23 December 2010)
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- 6.170
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- a Institution of Arbitration
- b Anti-Dummy Law allegations
- c Corruption allegations
- d Tribunal finding of no jurisdiction
- e Timing of the violation of law within the life of the investment
- f Estoppel
- g Reliance argument
- h Evidentiary standards
- i Tribunal’s conclusion
- j Dissenting Opinion
- k A note on the proceedings
- l Compensation for expropriation in Philippine courts
- m Decision on annulment
- n Postscript
- 10 African Holding Company of America, INC et Société Africaine de construction au Congo SARL v. République Démocratique du Congo (ICSID; Award, 2008)
- 11 Rumeli Telekom AS & Telsim Mobil Telekomikasyon Hizmetleri AS v. Republic of Kazakhstan (ICSID, 2008)
- 12 TSA Spectrum de Argentina SA v. Republic of Argentina (ICSID, 2008)
- 13 Siag and Vecchi v. The Arab Republic of Egypt (ICSID, 2009)
- 6.240
- a Institution of proceedings; substantive allegations
- b Corruption allegations in relation to the procurement of Lebanese nationality
- c Tribunal’s discussion of the applicable burden and standard of proof
- d Discussion of factual basis for corruption allegations
- e Dispositif of the Award
- f Professor Orrego’s dissenting opinion
- g Standard of proof
- h Fact of corruption
- 14 EDF (Services) Limited v. Romania (ICSID, 2009)
- 15 RSM v. Grenada (ICSID Annulment Committee, Decision on Application for Preliminary Ruling, 2009); Grynberg et al. v. Grenada (ICSID, 2010)
- 16 Niko Resources v. Bangladesh, BAPEX, and Petrobangla (ICSID, Decision on Jurisdiction, August 2014)
- 7 Emergent Trends
- Preliminary Material
- 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
- 5 The Scope of Inquiry: Treaty vs. Contract 'Investment Arbitration'
- Part III Towards a Jurisprudence Constante in Investment Arbitration Decision-Making on Corruption
- 8 Mere Corruption? On the Reluctance to Decide Corruption Issues
- Preliminary Material
- 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
- 10 State Responsibility for Corruption: The Attribution Asymmetry
- Preliminary Material
- 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
- Preliminary Material
- A The Scope of Arbitral Decision-making on Corruption
- B Competing Policy Goals
- C Distinguishing Political Risk from Economic Risk
- 8 Mere Corruption? On the Reluctance to Decide Corruption Issues
- Further Material
- [35.175.107.142]
- 35.175.107.142
