Criminal Investigations: A Hypothetical Case - Chapter 11 - Interim and Emergency Relief in International Arbitration - International Law Institute Series on International Law, Arbitration and Practice

Author(s): 

Don Wallace Jr.

Page Count: 

10 pages

Published: 

May, 2015

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Originally from Interim and Emergency Relief in International Arbitration - International Law Institute Series on International Law, Arbitration and Practice

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ABSTRACT:

 

Extending interim measures to order the cessation of actual or

pending criminal investigations by a respondent State poses exceptional

difficulties to an arbitral tribunal in investor-State arbitrations. The

discussion in this note is based on a slightly fictionalized hypothetical case,

involving a proposed amendment to an existing interim order.1

 

I. THE SLIGHTLY FICTIONALIZED HYPOTHETICAL CASE

 

The increasing use of interim measures inevitably poses novel

questions; none may be more fraught than the effort to prevent a

government from enforcing its criminal laws during the course of an

arbitration. The difficulty may be compounded when respondent seeks to

amend an existing interim order, as it did in our case. This article does not

pretend to exhaustive scholarship. Rather it seeks to illustrate the

questions, and dilemmas, posed.

 

Respondent maintains in its pleadings that claimant has with respect

to the operation of its investment in respondent’s country engaged in a

practice of ubiquitous, pervasive and frequent bribery and attempted

bribery at all levels of respondent’s government, and that actual and

pending investigations will establish this conclusively, so as to permit

responsible criminal prosecutions. At the time when the original interim

measures order was issued the respondent government did not have in its

possession sufficient information to responsibly commence a criminal

investigation, and the matter was not raised to the tribunal before it issued

the existing order. That situation has now changed, and the respondent

government wishes the order modified, so as to explicitly exclude from its

ban such criminal investigation or other criminal proceeding.

 

Respondent also points to its obligations under the United Nations

Convention Against Corruption (UNCAC), of which it is a party, to
cooperate with other parties.2 One of these parties is the United States,