Chapter 11 Corruption Is Not Special: Evidence and Standards of Proof for International Claims Involving Corruption
James J. Saulino
I.INTRODUCTION Allegations of corruption as part of a party’s substantive case are increasingly common in international investment arbitration, and they run in both directions. Claimant investors may allege that state corruption was involved in the acts that caused them injury. Respondent states, for their part, may raise corruption as a defense, often arguing that the claimant’s acts of corruption with regard to some aspect of its investment acts as a jurisdictional bar to the claim.
Where corruption is raised by either party, some tribunals have moved on to consider two related evidentiary questions: (1) which party bears the burden of proving that the corruption occurred, and (2) by what standard of proof. The extent to which tribunals have done this varies, and it appears to depend both on the centrality of the corruption allegation to the case and the extent to which the parties brief and argue the legal issue. Thus, not all cases involving claims of corruption contain a discussion of the appropriate standard of proof, and where they do, the level of analysis varies widely. At the same time, however, it is clear that this is a live legal issue to which parties and certain tribunals attach some level of importance.
In order to frame the legal debate that has been taking place, it is useful at the outset to clarify the distinction between burden of proof, on the one hand, and standard of proof on the other. The award in Rompetrol v. Romania, one of the recent International Center for the Settlement of Investment Disputes (“ICSID”) cases to analyze these evidentiary issues with respect to allegations of corruption, helpfully laid this out in clear terms: “The Tribunal believes that the distinction between the two can be stated quite simply: the burden of proof defines which party has to prove what, in order for its case to prevail; the standard of proof defines how much evidence is needed to establish either an individual issue or the party’s case as a whole.”