Allegations of Corruption in the Underlying Claim: The Evidentiary Challenges - WAMR 2015 Vol. 9, No. 3
Andrea J. Menaker
Stanimir A. Alexandrov
Lucinda A. Low
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Originally From World Arbitration and Mediation Review (WAMR)
This session focuses on the issues tribunals confront when allegations of corruption in the underlying claim are made, typically although not always by respondents in either investor- State or commercial claims. Should the standard of proof be any different with respect to such allegations? Are there situations that justify inverting of the burden of proof? Because not every case has the type of clear evidence that was available in the World Duty Free case, how should tribunals and counsel approach these fact-intensive issues? What is the relationship of arbitral proceedings to national proceedings?
MS. LOW: You have heard from Nicola Bonucci in the last panel about what amounts to an offense of transnational bribery under the Organisation for Economic Cooperation and Development (OECD) Convention, and that leads us to this next panel.
Questions of bribery and corruption are very factual in nature.
Of course, the conduct has to be measured against a legal standard. While the legal standards for this type of conduct have converged significantly in recent years, they are not identical but there are many similarities. If you look horizontally across antibribery statutes, you may find that giving something of value to a public official is generally forbidden, and some laws apply the prohibition against such conduct to any type of recipient, public or private.
In addition, as Nicola Bonucci said, there is almost always an element of intent in this legislation, intent to secure an undue advantage or benefit through some form of value that is given. The advantage can be a contract, a license, a permit, other executive actions such as regulatory benefits, judicial action, or legislative action.
This implies a deep factual inquiry into the conduct to determine what occurred and why. One of the key features in this area is that it shifts; sometimes business relationships or activities that, in one set of circumstances, can have a legitimate purpose, may, in another set of circumstances, also cross the line into having an illegitimate purpose.